SAIDUMUHAMMED v. P.M. Naseer, Nishad P. M. & United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **MACA.No.3789 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.2308/2012 DATED 19-09-2018 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER :** **SAIDUMUHAMMED AGED 61 YEARS S/O. MOIDHEEN, RESIDING AT KATTUTHERUVIL HOUSE, P.O. KANIPAYYUR, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 P.M.NASEER S/O. MUHAMMED, RESIDING AT POKKAKKILLATH HOUSE, ARIKANIYUR, THRISSUR DISTRICT, PIN - 680 102.** **2 NISHAD. P. M. S/O. MUHAMMED, RESIDING AT POKKAKKILLATH HOUSE, ARIKANIYUR, THRISSUR DISTRICT, PIN - 680 102.** **3 THE UNITED INDIA INSURANCE COMPANY LIMITED ORISON COMPLEX, WADAKKANCHERY ROAD, P.O. KUNNAMKULAM, THRISSUR DISTRICT - 680 031.** ## **BY SRI P.K.MANOJ KUMAR -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3789 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2308 of 2012 on the file of the Motor Accidents Claims Tribunal, Thrissur, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 08.09.2012, while he was riding a motorcycle bearing registration No.KL-9/A-1994. At the place of accident, the said motorcycle was hit by a motor car bearing registration No.KL-46/B-352 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending car by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,60,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed a written statement admitting the insurance **MACA.No.3789 OF 2019** **3** coverage of the offending motor car; however denying the negligence attributed on the 2[nd] respondent driver. The injuries, hospitalisation, age and income of the appellant/claimant stated in the claim petition were denied and it was contended that the amount of compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. Both sides have not chosen to adduce any oral 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 the offending motor car by the 2[nd] respondent driver. Since the 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.1,40,550/- and the insurer was directed to satisfy the award, with interest at the rate of 8% per annum, from the **MACA.No.3789 OF 2019** **4** date of petition, i.e., 29.10.2012 till realisation or payment, together with proportionate cost. 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 the insurance coverage of the offending vehicle is admitted by the 3[rd] respondent insurer, notice to respondents 1 and 2 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 **MACA.No.3789 OF 2019** **5** in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 9. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex 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 nonviolation of the principle of equitability. **MACA.No.3789 OF 2019** **6** ## 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Amount claimed<br>(in Rupees)|Amount awarded<br>(in Rupees)| |---|---|---|---| |1|Loss of earning (Total)|20,000|15,000| |2|Medical expenses|30,000|34,150| |3|Bystander expenses|10,000|2,400| |4|Transportation expenses|5,000|2,000| |5|Extra nourishment|5,000|2,000| |6|Damage to clothing and articles|--|1,000| |7|Pain and suffering|25,000|20,000| |8|Compensation for continuing or<br>permanent disability|30,000|48,000| |9|Compensation for the loss of<br>earning power||--| |10|Loss<br>of<br>amenities<br>and<br>enjoyment<br>of<br>life<br>and<br>disfigurement|20,000|16,000| |11|Damage caused to Motor Cycle|15,000|--| ||Total<br>Claim limits to|1,60,000|1,40,550| ## 11. The accident occurred on 08.09.2012. At the time of accident, the appellant was aged 54 years. He claimed a monthly income of Rs.15,000/- as a fish merchant. However, no reliable materials were placed on record to prove the same. The appellant has also not chosen to mount the box. In such circumstances, the Tribunal fixed the monthly income of the appellant notionally as Rs.5,000/- for the purpose of assessing compensation under various heads. **MACA.No.3789 OF 2019** **7** 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 the ground realities prevailing at the relevant point of time. **MACA.No.3789 OF 2019** **8** 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 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the **MACA.No.3789 OF 2019** **9** monthly income of the appellant notionally as Rs.8,500/-, for the purpose of assessing compensation under different heads. 15. As per Ext.A2 and Ext.A4 discharge summaries, the appellant had sustained lacerated wound on left leg with soft tissue loss and lacerated wound on scalp. He had undergone inpatient treatment for 12 days. In Ext.A5 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is certified as 10%. The Tribunal accepted the same for the purpose of awarding compensation under various heads. 16. Towards loss of earning, Tribunal awarded an amount of Rs.15,000/-, at the rate of Rs.5,000/- per month for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 3 months fixed by the Tribunal for granting loss of earning cannot be said to be on the lower side. Since the monthly income of the appellant has been re-fixed as Rs.8,500/-, the compensation under the head loss of earning is re-fixed as Rs.25,500/- (8,500x3), resulting an additional **MACA.No.3789 OF 2019** **10** compensation of **Rs.10,500/-** (25,500-15,000) under this head. 17. 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 **MACA.No.3789 OF 2019** **11** 61 to 65 years and multiplier of **5** for 66 to 70 years. ## 18. 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. 19. In the instant case, as on the date of accident, the appellant was aged 54 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** has to be applied and the multiplier of 8 applied by the Tribunal is not proper. 20. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.48,000/- (5,000x12x8x 10/100). Since the monthly income of the appellant is refixed notionally as Rs.8,500/- and the multiplier to be adopted is 11, the compensation under this head is re-fixed as Rs.1,12,200/- (8,500x12x11x10/100), resulting an additional compensation of **Rs.64,200/-** (1,12,200-48,000). 21. Towards bystander expenses, the Tribunal awarded **MACA.No.3789 OF 2019** **12** a sum of Rs.2,400/- at the rate of Rs.200/- for a period of 12 days. Considering the fact that the accident was of the year 2012, the rate fixed by the Tribunal is re-fixed at Rs.250/- per day. Therefore, the appellant is entitled for a compensation of Rs.3,000/- (250x12), resulting an additional compensation of **Rs.600/-** under the said head. 22. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000, which represents just and reasonable compensation and hence, the same requires no enhancement in this appeal. 23. Towards damage to clothing, the Tribunal awarded an amount of Rs.1,000/-. Considering the fact that the accident was of the year 2012, the compensation awarded under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 24. Towards loss of amenities, the Tribunal awarded a sum of Rs.16,000/-. Considering the nature of injuries sustained by the appellant and treatment he had undergone, the compensation awarded by the Tribunal under the said head cannot be said to be on the lower side warranting an **MACA.No.3789 OF 2019** **13** enhancement in this appeal. In the result, the appellant will be entitled for an additional compensation of **Rs.75,800/-** (Rupees Seventy five thousand and eight hundred only), [10,500+64,200+ 600+500] 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/17/10