Saidalavi v. Hamza and United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **MACA.No.4436 OF 2019** **AGAINST THE AWARD IN OPMV 120/2017 DATED 09-05-2019 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, MANJERI** ## **APPELLANT:** **SAIDALAVI,** **AGED 51 YEARS, S/O. AHAMMED, PANOLI HOUSE, VELLARAMKUNNU, CHUNGATHARA P.O, MALAPPURAM DISTRICT, PIN-679334.** **BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERI S THAMPI** ## **RESPONDENTS:** **1 HAMZA, S/O. KUNHALAVI, KUTHUPARAMBAN HOUSE, KOTTAMKODE, PORUR P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679339. 2 THE UNITED INDIA INSURANCE COMPANY LIMITED, REPRESENTED BY ITS MANAGER, BRANCH OFFICE, CALICUT ROAD, PERINTHALMANNA P.O, MALAPPURAM DISTRICT, PIN-679322.** **SRI P.K.MANOJ KUMAR-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.4436 OF 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.120 of 2017 on the file of the Additional Motor Accidents Claims Tribunal-II, Manjeri, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the him in a motor accident, which occurred on 02.06.2016, while he was riding a motorcycle bearing registration No.KL-71/B-1211. At the place of accident, the motorcycle was hit by a car bearing registration No.KL14/M-8877, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/-, under various heads (wrongly stated in the award as limited to Rs.1,00,000/-). 2. Before the Tribunal, the 1[st] respondent owner-cumdriver remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement admitting the 3 MACA No.4436 OF 2019 insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] 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. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. The document marked as Ext.X1 is the disability certificate issued by the District Medical Board, Government General Hospital, Manjeri assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. No oral or documentary evidence was adduced on the side of the respondents. 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 car by the 1[st] respondent 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.1,51,674/-, which 4 MACA No.4436 OF 2019 was rounded off to Rs.1,52,000/-, together with interest at the rate of 9% per annum from the date of petition till date of deposit, 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 2[nd] 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 5 MACA No.4436 OF 2019 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 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 6 MACA No.4436 OF 2019 ## the Tribunal under various heads reads thus; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|Nil|Nil|| |2|Partial loss of earning|24,000/-|20,000/-|| |3|Transport to Hospital||2,000/-|| |4|Medical|60,000/-|34,874/-|| |5|Nursing|Nil|Nil|| |6|Damage to cloth and<br>article|1,000/-|1,000/-|| |7|Bystander expenses|2,000/-|2,000/-|| |8|Extra nourishment|3,000/-|2,000/-|| |9|Compensation for pain<br>and suffering|1,00,000/-|43,000/-|| |10|Compensation for the<br>continuing<br>or<br>permanent disability if<br>any|1,60,000/-|46,800/-|| |11|Compensation for loss<br>of earning power|50,000/-|Nil|| ||Total|4,00,000/-<br>limited to<br>Rs.1,00,000/-|1,51,674/-<br>rounded to<br>Rs.1,52,000/-|| 11. The accident occurred on 02.06.2016. At the time of accident, the appellant was aged 49 years. The appellant claimed a monthly income of Rs.12,000/- as a manual labourer. 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 7 MACA No.4436 OF 2019 notionally as Rs.10,000/-, 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 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 8 MACA No.4436 OF 2019 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 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 the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, and taking note of the fixation of notional monthly income by the Apex Court in the decisions 9 MACA No.4436 OF 2019 referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.10,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Exts.A3 and A4 are the accident register-cum-wound certificates. Ext.A2 is the discharge summary. As per medical records, the appellant had sustained both bone fracture (left forearm), lacerated wound medial aspect of left ankle, abrasion with contusion left hip and abrasions and contusions all over the body. He had undergone inpatient treatment for a period of three days. Exts.A6 and A9 series of medical bills are for a sum of Rs.34,874/-. 16. In Ext.X1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 3%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.10,000/- per month for a period of 2 months. Considering the nature of injuries 10 MACA No.4436 OF 2019 sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, the compensation under the head loss of earning is re-fixed as Rs.42,000/- (10,500 x 4), resulting an additional compensation of **Rs.22,000/-** (42,000 - 20,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 3 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2016 and the appellant had undergone inpatient 11 MACA No.4436 OF 2019 treatment for 3 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. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.34,874/-, covered by Exts.A6 and A9 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.43,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the 12 MACA No.4436 OF 2019 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. 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 13 MACA No.4436 OF 2019 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. 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 49 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 **13** applied by the Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.46,800/- (10,000 x 12 x 13 x 3/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, applying the multiplier of 13 applicable to the age group of the appellant and the percentage of permanent disability as 3%, the compensation under the head permanent disability is re-fixed as Rs.49,140/- MACA No.4436 OF 2019 14 (10,500 x 12 x 13 x 3/100), resulting an additional compensation of **Rs.2,340/-** ( 49,140 – 46,800) under this head. 27. Towards loss of amenities, the Tribunal awarded no compensation. In Ext.X1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 3%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.5,000/-** under the head loss of amenities. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.29,840/-** (Rupees Twenty Nine Thousand Eight Hundred and Forty only) [22,000 + 500 + 2,340 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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 MACA No.4436 OF 2019 15 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 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** **yd**