Sadsivakurup S/o Krishna Pillai v. G. Prathapa Varma Thamapan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **MACA.No.69 OF 2016** **AGAINST THE AWARD IN OPMV 623/2007 DATED 30-06-2014 OF I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** **SADSIVAKURUP S/O.KRISHNA PILLAI, PAURNAMI, NEAR ALUVILA TEMPLE, NADAKKAL CHERRY, KALLUVATHUKKAL VILLAGE, KOLLAM.** **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENTS/RESPONDENTS:** **1 G.PRATHAPA VARMA THAMAPAN S/O.GOPALA PANICKER, VERMA GAS AGENCY, DAYABJI JUNCTION, PARAVOOR KOLLAM. 2 SAJEEV S. S/O.SURENDRAN, SARITHA BHAVAN, PALLUTTUKAVU, NEDUNGOLAM, PARAVOOR, KOLLAM.** **3 THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LTD, LAND MORTGAGE BANK BUILDING, KOLLAM.** **R1 BY ADV. SRI.C.RAJENDRAN R1 BY ADV. SRI.JOY JOSEPH MANAYATHU R1 BY ADV. SRI.K.R.RANJITH R3 BY ADV. SRI.JOY JOSEPH (MANAYATHU)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.69 OF 2016** ..2.. ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.623 of 2007 on the file of the 1[st] Additional Motor Accidents Claims Tribunal, Kollam, 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 08.01.2007, while he was travelling on a motorcycle bearing registration No.KL-2Z-4857, as a pillion rider. At the place of accident, the motorcycle was hit by a three wheeler goods vehicle bearing registration No. KL/2H2373, 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 the goods vehicle by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/-, under various heads. In the claim petition, the appellant claimed **MACA.No.69 OF 2016** **==> picture [17 x 8] intentionally omitted <==** that, at the time of accident, he was working as Supervisor at Baghlaf Al-Zafer Factory Limited, Saudi Arabia, earning a monthly income of Rs.25,000/-. 2. Before the Tribunal, the 1[st] respondent owner did not file any written statement. The 2[nd] respondent driver remained absent and he was set _ex parte._ The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending vehicle; however, denying negligence alleged against the 2[nd] respondent driver. The insurer alleged negligence on the rider of the motorcycle on which the appellant was travelling as a pillion rider. 3. Before the Tribunal, Exts.A1 to A26 were marked on the side of the appellant/claimant. He was examined as PW1. The document marked as Ext.B2 is the copy of the driving licence of the 2[nd] respondent. The document marked as Ext.C1 is the disability certificate issued by the District Medical Board, Kollam assessing the permanent disability of the **MACA.No.69 OF 2016** **==> picture [18 x 8] intentionally omitted <==** appellant as 35%. 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 offending vehicle 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.6,86,772/-, together with interest at the rate of 8% per annum from the date of petition, i.e., 04.05.2007 till realisation, together with proportionate cost and the insurer was 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] **MACA.No.69 OF 2016** ..5.. 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 be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. ## **MACA.No.69 OF 2016** ..6.. 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 claim|Claimed<br>Amount|Amount<br>awarded<br>(Rupees)|Basis/-vital<br>(details in a<br>nutshell)| |---|---|---|---| |Loss of earnings,|6,00,000/-|48,000/-|@Rs.4000/-| ## **MACA.No.69 OF 2016** ..7.. |partial loss of<br>earnings|||p.m.for 12<br>months| |---|---|---|---| |Transport to<br>hospital||10000|| |Extra nourishment||8,000/-|| |Damage to clothing<br>and articles &<br>others||500/-|| |Medical expenses||3,60,472/-|As per<br>medical bills| |Pain and suffering,<br>Permanent<br>disability and Loss<br>of earning power|4,00,000/-|Rs.75,000/-|Having<br>suffered<br>greivous<br>injuries| |Permanent<br>disability||1,84,800/-|| |Total|10,00,000/<br>-|6,86,772/-|| 11. The accident occurred on 08.01.2007. At the time of accident, the appellant was aged 53 years. The appellant claimed a monthly income of Rs.25,000/- as Supervisor, Baghlaf Al-Zafer Factory Limited, Saudi Arabia. In order to prove the said fact, the appellant produced Ext.A16 statement of his savings account, Ext.A25 Employment certificate and Ext.A26 passport. He was examined as PW1. The Tribunal on **MACA.No.69 OF 2016** ..8.. the ground that employment certificate was not proved in an appropriate manner, fixed the monthly income notionally as Rs.4,000/-, 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 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 **MACA.No.69 OF 2016** **==> picture [18 x 8] intentionally omitted <==** 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 **MACA.No.69 OF 2016** ..10.. 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. In paragraph 6 of the written statement, the 2[nd] respondent insurer denied various claims made by the claimant, in the claim petition. Paragraph 6 reads thus:- “6. Claims made in column numbers 3,4,5,6,8,9,10, 11,12,12 and 14 about the age, occupation, income, injuries, period of treatment, disability etc. are to be proved by the petitioner with documentary evidence. But he has not yet produced any documents so this respondent denied all the claims made in the above mentioned columns in the petition. The statement in column No.6 of the petition is absolutely false. Hence denied by the respondent. At the time of alleged accident the petitioner was job less man.” 15. Relying on the decisions reported in **Valsamma &** **others v. Binu Jose & others [2014 (1) KHC 207]** , **Abraham Jacob v. Mubarak [2014(3) KLT 883]** ..11.. ## **MACA.No.69 OF 2016** **Sherfuddin v. Saveesh K & another [2014(1)KHC 242 DB],** the learned Standing Counsel for the 3[rd] respondent insurer would contend that, since the appellant failed to prove his monthly income, notional fixation of his monthly income alone is permissible, which cannot go above the notional monthly income that can be fixed based on the fixation of notional monthly income by the Apex Court in **Ramachandrappa's case** and **Syed Sadiq's case** referred to (supra). 16. As already noticed, in the claim petition the appellant raised specific claim that he was earning a monthly income of Rs.25,000/-, at the time of accident, as Supervisor at Baghlaf Al-Zafer Factory Limited, Saudi Arabia. The appellant was examined as PW1. Despite the specific averments in the claim petition, the 3[rd] respondent insurer filed a written statement, which contains only vague denial of the monthly income of the appellant and other particulars mentioned in the claim petition. **MACA.No.69 OF 2016** ..12.. 17. In **Jiju Kuruvila v. Oriental Insurance Co. Ltd. [(2013) 9 SCC 166]** the appellants before the Apex Court were the legal representatives of the deceased, who was about 45 years of age as on the date of accident (16.04.1990) and was working as a Manager in Freeman Management Corporation, New York Branch in USA for more than 9 years and was receiving a monthly salary of 2500 US Dollars, equivalent to Rs.43,100/-. He was provided with quarter by the employer and was residing alongwith his wife. The deceased used to give Rs.30,000/- per month to his wife for the household expenses and savings after meeting his personal expenses. He was healthy, energetic, otherwise, had longevity of life and could have continued in service up to the age of 65 years as per service conditions, i.e., for another 20 years. Tribunal fixed Rs.10,000/- as the monthly contribution by the deceased. The High Court held that the Tribunal wrongly fixed Rs.10,000/- as the monthly contribution by the **MACA.No.69 OF 2016** **==> picture [22 x 8] intentionally omitted <==** deceased to the family and observed that even if 1/3[rd] was deducted towards personal expenses of the deceased, more than 1600 US Dollars could be taken as dependency benefit. However, while determining the compensation, the High Court took the figure of 1500 US Dollars as the dependency benefit. The exchange rate as was prevailing on the date of filing of the claim petition, i.e., April, 1990 was taken into consideration based on Ext.A7 and worked out the contribution to the family as Rs.25,950/- per month. One of the questions before the Apex Court was whether the foreign currency amount has to be converted into the currency of the country on the basis of exchange rate as on the date of filing claim petition (April, 1990) or as on the date of determination (May, 1993). The claimants filed a petition in April, 1990 (affidavit sworn on 24[th] March, 1990) and claimed compensation in INR, i.e., Rs.57,25,000/-. Such compensation was not claimed in US Dollars. For the said reason and in view of the decisions in ## **MACA.No.69 OF 2016** ..14.. **Forasol v. Oil and Natural Gas Commission [(1984) Supp. SCC 263]** and **Renusagar Power Co. Ltd. v. General Electric Co. [(1994) 1994 Supp. 1 SCC 644]** the Apex Court held that the date of filing of the claim petition (April, 1990) is the proper date for fixing the rate of exchange at which foreign currency amount has to be converted into currency of the country (INR). The Tribunal and the High Court have rightly relied on Ext.A7, to fix the rate of exchange as Rs.17.30 (as was prevailing in April, 1990). 18. In **Jiju Kuruvila,** on the question of just and proper compensation, the Apex Court noticed that, both the Tribunal and the High Court have accepted that the deceased was 45 years of age at the time of accident; he was working as Manager, Freeman Management Corporation, New York Branch, USA and was getting a monthly salary of 2500 US Dollars. The High Court accepted that the deceased, as per conditions of service, could have continued the employment up **MACA.No.69 OF 2016** **==> picture [22 x 8] intentionally omitted <==** to the age of 65 years. Ext.A6 is a certificate issued by the employer of deceased, i.e., Freeman Management Corporation, USA dated 23.04.1990, as per which his annual salary was 30,000 US Dollars. He was in their employment for 9 years and had an excellent standing and his employment was of a permanent nature. The deceased would have continued in service up to the age of 65 years. Ext.A6 was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. On the basis of the aforesaid annual income and exchange rate of Rs.17.30 per US Dollar, as applicable in April, 1990 (as per Ext.A7), the Apex Court found that the annual income of the deceased if converted in Indian currency will be 30,000 x 17.30 = Rs.5,19,000/- at the time of death. 19. In **Jiju Kuruvila** , the deceased was in the employment Freeman Management Corporation, New York **MACA.No.69 OF 2016** **==> picture [22 x 8] intentionally omitted <==** Branch, USA for 9 years and his employment was of a permanent nature. He was provided with quarter by the employer and was residing alongwith his wife. He was working as Manager and was getting a monthly salary of 2500 US Dollars. The deceased would have continued in service up to the age of 65 years. In the said case, Ext.A6 certificate issued by the employer of deceased, which was attested by Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 was also produced before the Tribunal. The law laid down by the Apex Court in **Jiju** - **Kuruvila** cannot be applied in the case of non permanent employment with uncertainty regarding continuance. The monthly income of the injured/deceased, which he was alleged to have been earning in a Gulf country where the employment of such nature is not permanent and is likely to be terminated at the whims and fancies of the Sponsor cannot be relied upon **MACA.No.69 OF 2016** ..17.. for the purpose of assessing compensation payable under the head disability in injury cases/loss of dependency in death cases. 20. In **Valsamma and another v. Binu Jose and others [2014 (1) KHC 207]** the case of the appellants before the Division Bench of this Court was that the deceased, who was aged 29 years, was working as spray painter in Oman and getting Rs.20,000/- per month. In order to prove the same, they have produced Ext.A5 agreement entered into between the deceased with one Bahwan Automotive Centre, Sultanate of Oman dated 15.05.2001; Ext.A7 labour card; and Ext.A8 passport. But, those documents were not proved in accordance with law. The executant of Ext.A6 agreement was not examined to prove the contents of the same. The passport entry would show that the deceased was having visa up to 25.03.2005 and the accident occurred on 18.09.2004. The Division Bench held that those documents are not sufficient to **MACA.No.69 OF 2016** ..18.. prove that the deceased was having so much income there. The Division Bench noticed that, employment in Gulf countries is not certain and it is likely to be terminated at any time. So, under such circumstances, it cannot be said that it is a permanent employment as in a Government service there. If the deceased was a permanent employee there, then that can be taken as a permanent income and that may be useful to assess the compensation payable to his dependents on that basis. In the case of a non-permanent employment with uncertainty regarding continuance, it is not safe to rely on that income for the purpose of assessing compensation under the head 'loss of dependency'. So, in such circumstances, the Court will have to assess the income of the person, in the context of Indian standards, taking the probable income which he may have fetched if he was working in India during the relevant time and the income which he was alleged to have been earning in a Gulf country where the employment of such **MACA.No.69 OF 2016** ..19.. nature is not permanent and is likely to be terminated at the whims and fancies of the Sponsor cannot be relied upon. So, the Tribunal was perfectly justified in not relying on the document produced and the income alleged to have been derived by the deceased at Oman for the purpose of considering the compensation payable on his death. The Division Bench held that, some guess work will have to be made for assessing the income of the deceased who was not having permanent job or self employment, but having some fixed income. The deceased was working as a spray painter and so a person of that caliber in Kerala during 2004 will be getting at least Rs.3,000/- and including his future prospects, the Division Bench took his income as Rs.5,000/- per month, for the purpose of assessing compensation under the head of loss of dependency. 21. In **Abraham Jacob @ Avarachan v. N. Mubarak and others [2014 (3) KLT 883]** , according to the appellant ..20.. ## **MACA.No.69 OF 2016** before the Division Bench of this Court, at the time of accident, he was working as a Sales Manager in Buzwair Engineering & Contracting, Doha, Qatar, and earning a monthly income of Qatari Riyal 10,000/- (equivalent INR 1,15,000/-). Ext.A4 was the salary certificate issued by his employer, certifying that he is working with them as an employee and his basic salary is Qatari Riyal 10,000/- per month. Ext.A4 was authenticated by the Consular Officer of the Embassy of India at Doha (Qatar), in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. Though the salary certificate was marked as Ext.A4, the Tribunal refused to rely on the same stating that it has not been proved as required by law. 22. In **Abraham Jacob** the Division Bench held that sub-section (1) of Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 confers power on the Indian diplomatic and consular officers in foreign countries to **MACA.No.69 OF 2016** ..21.. administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State and every oath, affidavit and notarial act administered, sworn or done by or before such diplomatic and consular officers shall be as effectual as if duly administered or done by any lawful authority in a State. Sub-section (2) of Section 3 of the Act lays down that any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of the diplomatic and consular officers authorised by the Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person. The Division Bench held that Section 3 of the Act does not dispense with the proof of a document according to law if it is to be used as evidence in a court of law. All that Section 3 does is to enable a court to **MACA.No.69 OF 2016** ..22.. dispense with the proof of the genuineness of the seal and signatures of a diplomatic or consular officer on a particular document. If the document is otherwise relevant and proved in accordance with law, a copy of the said document duly authenticated in the manner prescribed by the Act can be admitted in evidence. 23. In **Abraham Jacob** , the appellant, who was only a Postgraduate in Botany, has no case that he had acquired any prior experience or special qualification to hold the post of Sales Manager in engineering and contract field. In such circumstances, the Division Bench held that, though Ext.A4 is a document authenticated in accordance with Section 3 of the Act, the monthly income of Qatari Riyal 10,000/- shown in that certificate cannot be taken as the basis for calculating compensation payable under various heads. The document marked as Ext.A10 was a copy of the passport of the appellant, as per which, he went to Doha in the year 1998 and **MACA.No.69 OF 2016** ..23.. returned on 18.04.1999. Ext.A11 certificate issued by the Asst. General Manager, the Lord Krishna Bank Ltd., Kottayam Branch showed that he was having a NRE (Non-Resident External) term deposit to the tune of Rs.49,04,857/-, as on 31.03.1999. Ext.A12 was another certificate issued by the Manager, Punjab National Bank, Kottayam Branch, certifying that the appellant and his wife Mollykutty were having accounts with them and the balance as on 31.03.1999 was Rs.36,95,199/-. The Division Bench found that Exts.A11 and A12 certificates indicate that the appellant was drawing a reasonably good salary from his overseas employment. As per Annexure C certificate issued by the Chief Executive Officer of Buzwair Engineering & Contracting, Doha, produced before this Court, along with I.A.No.285/2014, a document authenticated in accordance with Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, the service of the appellant was terminated as he could not rejoin service after ## **MACA.No.69 OF 2016** ..24.. the accident occurred on 10.05.1999. Considering the aforesaid facts and circumstances of the case and the evidence on record, the Division Bench found that the monthly earning capacity of the appellant, as on the date of accident, can be reasonably fixed at Rs.40,000/-, as against Rs.10,000/- fixed by the Tribunal, for calculating compensation under various heads. 24. In **Sherfuddin v. Saveesh K. and another [2014 (1) KHC 242]** the case of the appellant before the Division Bench was that, at the time of accident he was a driver-cumsalesman working in Qatar and getting Rs.28,000/- per month. He had produced Ext.A15 driving licence and Exts.A10 and A10(a) passport to prove that he was employed in Qatar. But, he had not produced any document to prove that he was getting Rs.28,000/- per month at that time. He had no consistent case regarding his income. Though, in the claim petition, he had mentioned his income as Rs.28,000/- per **MACA.No.69 OF 2016** ..25.. mensum, when he was examined as PW1, his case was that his income was Rs.60,000/- per month. He had produced his passbook to show that he had sent Rs.58,103/- during a span of 7 months. The Division Bench held that, the fact that the appellant had sent Rs.58,103/- during a span of 7 months alone is not sufficient to come to the conclusion that he was getting a stable income in a foreign country. It was not a permanent income and it has got its own uncertainties. In such circumstances, the income alleged to have been earned by a person in a foreign country cannot be taken as such for the purpose of assessing his monthly income. The Court has to consider the standards in India as to what would have been the probable income that such a person will earn if he was employed here. The Division Bench, under the circumstances, found that the monthly income of Rs.5,000/- fixed by the Tribunal is just and proper, which requires no enhancement. 25. In **Satheesan E.K. v. Musthafa K.P. and another** **MACA.No.69 OF 2016** ..26.. **[2018 (5) KHC 884]** one of the contentions raised before this Court by the learned Standing Counsel for the insurer was that the income as revealed by the documents produced in evidence cannot be taken in toto, since employment in a foreign country is beset with uncertainties. It was also argued that if such an income is taken for computation of future earnings, it would lead to undue benefit being conferred on the claimant. After considering the rival contentions, this Court held that, **Valsamma [2014 (1) KHC 207]** is a case in which the claimant, who was the legal heir of the deceased, asserted an income of Rs.20,000/- and relied on an agreement with the foreign employer, the labour card and the Passport. There was no clear indication of the amounts received by the deceased as income. In that context, finding that the documents are not sufficient to prove the income of the deceased, the Court assessed the income of the person in the context of Indian standards, and for a Spray Painter the income was fixed at **MACA.No.69 OF 2016** ..27.. Rs.5,000/- per month. **Sherfuddin [2014 (1) KHC 242]** was a claim filed by the injured itself, asserting an income of Rs.28,000/- in his foreign employment at Qatar. Again, the Court found that there was no document showing the exact amount received by the claimant in his foreign employment. It was also found that the pleadings indicated an assertion of an amount of Rs.28,000/- per mensem, while in deposition he stated it to be Rs.60,000/-. Finding discrepancy in the versions of the claimant itself as also the finding the exact amounts not being proved, the income of a driver-cum-salesman was fixed at Rs.5,000/-. In **Abraham Jacob @ Avarachan [2014 (3) KLT 883]** the appellant produced a salary certificate authenticated by the Consular Officer of the Embassy of India at Doha (Qatar) in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. The Court found that such authentication would not give a go by to the requirement of proof insofar as the contents of the **MACA.No.69 OF 2016** ..28.. documents. Therein also, when the claim of income from the foreign employer was of Rs.1,15,000/- per month, the monthly income accepted, following **Valsamma** , was Rs.40,000/-. It is fairly discernible that in all these decisions the different Division Benches adopted 1/4th of the amounts asserted by the claimants as the monthly income of the injured/deceased from the foreign employment. The uncertainties insofar as the foreign employment, as has been found in the various decisions, loom large and stand against the claimant in the present case also. But, that would not deter this Court from making a reasonable computation of the monthly income, again going by the binding precedents, at least 1/4th of the income in the foreign employment which, in the present case, stands proved unequivocally by reason of no objection having been raised on the proof of its contents at the time when it was marked in trial. 26. Taking note of the law laid down in the decisions **MACA.No.69 OF 2016** **==> picture [23 x 8] intentionally omitted <==** referred to supra and taking into consideration Ext. A16 statement of accounts and Ext.A25 employment certificate and also the oral testimony of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.6,250/- for the purpose of assessing compensation under various heads. 27. The document marked as Ext.A7 is the wound certificate. Ext. A8, A11 and A12 are discharge summaries. Ext. A10 is the medical certificate. As borne out from the medical records, in the accident, the appellant sustained open comminuted supra inter condylar fracture femur with bone loss and Comminuted fracture proximal fracture ulna (R). Immediately after the accident the appellant was taken to Royal Hosptial, Chathannor from where he was referred to Medical College Hosptial, Thiruvananthapuram. Later he was taken to SP Fort Hospital, Thiruvananthapuram for expert management, where he had undergone inpatient treatment ## **MACA.No.69 OF 2016** ..30.. from 08.01.2007 to 19.01.2007; from 05.02.2007 to 12.02.2007; from 19.07.2007 to 23.07.2007; from 28.03.2013 to 30.03.2012 and from 18.02.2013 to 21.02.2013 _._ He had undergone inpatient treatment for a total period of 32 days. 28. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 35%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. As per Ext. C1 there is shortening of right lower limb by 2 inches; curved wound scar over thigh and knee of length 30 cm; straight surgical scar lateral aspect of right leg size 20 cm; and gross swelling on right thigh and right knee. 29. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.4,000/- for a period of **MACA.No.69 OF 2016** ..31.. 12 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 12 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.6,250/-, the compensation under the head loss of earning is re-fixed as Rs.75,000/- (6,250 x 12), resulting an additional compensation of **Rs.27,000/-** (75,000 – 48,000). 30. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 32 days. Towards transportation to hospital, 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 this head represents just and reasonable compensation, which requires no enhancement in this appeal. 31. Towards extra nourishment, the Tribunal awarded a **MACA.No.69 OF 2016** ..32.. sum of Rs.8,000/-. The Tribunal awarded no amount towards bystander expenses. The accident is of the year 2007 and the appellant had undergone inpatient treatment for 32 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs. 6,400/-** (200 x 32) as compensation under the head bystander expenses. The compensation awarded by the Tribunal under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. 32. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2007, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1000 - 500). 33. Towards medical expenses, the Tribunal awarded a **MACA.No.69 OF 2016** **==> picture [23 x 8] intentionally omitted <==** sum of Rs.3,60,472/- covered by Ext.A19 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. 34. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.75,000/-. 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 is on the higher side, which is scaled down to Rs.50,000/-, resulting **an excess payment** of **Rs.25,000/-,** which has to be deducted from the additional compensation granted in this appeal. 35. 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** **MACA.No.69 OF 2016** ..34.. **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. ## 36. In **National Insurance Company Ltd. v. Pranay** **MACA.No.69 OF 2016** ..35.. **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. 37. In the instant case, as on the date of accident, the appellant was aged 53 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 **11** applied by the Tribunal is correct and proper. 38. 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 **MACA.No.69 OF 2016** ..36.. 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 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 **MACA.No.69 OF 2016** **==> picture [22 x 8] intentionally omitted <==** 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 (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance** **MACA.No.69 OF 2016** ..38.. **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 **MACA.No.69 OF 2016** ..39.. 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]** . 39. 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. 40. In view of the law laid down in the decisions referred to supra, addition of future prospects to the notional **MACA.No.69 OF 2016** **==> picture [24 x 8] intentionally omitted <==** monthly income of the injured can be made only in cases in which the injured person is having higher percentage of functional disability, considering the nature of injuries sustained in the accident and also the disabilities that had arisen out of those injuries. Considering the nature of disability noted in Ext.C1 disability certificate, it cannot be said that the appellant, who was working as Supervisor in a factory at Saudi Arabia, is suffering from higher decree of functional disability, in order to add future prospects to the notional monthly income, while calculating the disability compensation. 41. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,84,800/- (4,000 x 12 x 11 x 35/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,250/-, applying the multiplier of 11 applicable to the age group of the appellant and the percentage of permanent disability as 35%, the compensation under the head permanent disability is re-fixed as ## **MACA.No.69 OF 2016** ..41.. Rs.2,88,750/- (6,250 x 12 x 11 x 35/100), resulting an additional compensation of **Rs.1,03,950/-** (2,88,750 – 1,84,800). 42. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 1,12,850/-** (Rupees One lakh seventy one thousand and fifty only) [(27,000 + 6,400 + 500 + 1,03,950) – 25,000] 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. 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 and clarified ## **MACA.No.69 OF 2016** ..42.. further in Official 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** kkj