SAINUL ABID @ ABID v. NATIONAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** **MACA.No.4382 OF 2019(A)** **AGAINST THE AWARD IN OP(MV) NO.1291/2003 DATED 12-02-2019 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **SAINUL ABID @ ABID AGED 38 YEARS S/O. HAMZAKUTTY, KOLATHUVEEDU, ATHANIKKAL, P.O. VALLIKUNNU, MALAPPURAM 673 314.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.A.D.DIVYA** ## **RESPONDENT/2ND RESPONDENT:** **NATIONAL INSURANCE CO.LTD., DO: II NOOR COMPLEX, MAVOOR ROAD, NEAR ARAYEDATHUPALAM, KOZHIKODE 673 004, REPRESENTED BY BRANCH MANAGER.** **R1 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.4382 of 2019(A) 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1291 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 19.03.2003, while he was standing on the side of a public road. At the place of accident, he was knocked down by a goods autorikshaw bearing registration No.KL-11/D-9808 owned by the 1[st] respondent and driven by the 3[rd] respondent before the Tribunal and insured with the respondent herein. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorikshaw by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the owner and driver of the autorikshaw remained absent and he was set ex parte. 3. The respondent insurer filed written statement admitting insurance coverage of the autorikshaw involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, MACA No.4382 of 2019(A) 3 etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant and the claimant was examined as PW1. The 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 autorikshaw by its 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.1,93,350/- (which was rounded off to Rs.1,93,500/-), together with interest at the rate of 7% per annum from the date of application till 31.12.2017 and thereafter at the rate of 8% per annum till the date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant MACA No.4382 of 2019(A) 4 and also the learned Standing Counsel for the 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 with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and MACA No.4382 of 2019(A) 5 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|Amount<br>allowed|Basis/vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earning capacity|2,00,000|1,29,600|4000x12x18x18/100| |2|Transport to hospital|8,000|1,000|| |3|Damage to clothings|850|nil|| |4|Extra nourishment|10,000|2,000|| |5|Bystander's expense|25,000|5,750|250 x 23 days| |6|Pain & suffering|75,000|10,000|| |7|Loss of amenities and<br>enjoyment in life|Nil|30,000|| |8|Medical bills|75,000|15,000|| ||TOTAL||1,93,350|Rounded<br>off<br>to<br>Rs.1,93,500/-| 12. The accident occurred on 19.03.2003. At the time of accident, the appellant was aged 22 years. He claimed a monthly income of Rs.6,000/- as driver. The appellant was examined as PW1 and his driving licence was placed on record as Ext.A6. In the absence of any reliable materials, the Tribunal fixed the monthly MACA No.4382 of 2019(A) 6 income notionally as Rs.4,000/-, 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 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** MACA No.4382 of 2019(A) 7 **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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of the appellant as PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.4,250/-, for the purpose of assessing compensation under various heads. MACA No.4382 of 2019(A) 8 16. The document marked as Ext.A2 is the wound certificate and Ext.A4 is the discharge summary. Ext.A5 is the MRI scan report of cervical spine. In the accident, the appellant sustained fracture spinous process C7; suspected anterior avulsion fracture C5; prevertebral haematoma C1 to C4 and soft tissue contusions around C4 and C5 spinous processes. The appellant had undergone inpatient treatment for a period of 23 days. Ext.A3 series of medical bills are for a sum of Rs.14,891/-. 17. The document marked as Ext.A7 is the disability certificate issued by an individual doctor in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. The appellant, who was examined as PW1, deposed that he is disabled from carrying out any hard job like driving and he is suffering from neck pain. The Tribunal accepted the percentage of disability assessed in Ext.A7, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded no compensation. 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 loss of earning for a period of 8 months. Since the monthly income of the MACA No.4382 of 2019(A) 9 appellant is re-fixed notionally as Rs.4,250/-, the appellant is granted a sum of **Rs.34,000/-** (4,250 x 8) under the head loss of earning. 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 23 days. The accident is of the year 2003. 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.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 – 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.5,750/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 23 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 towards bystander expenses cannot be said to be on the lower side, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as MACA No.4382 of 2019(A) 10 Rs.2,300/- (100 x 23), resulting an additional compensation of **Rs.300/-** (2,300 – 2,000). 21. Towards damage to clothing and articles, the Tribunal awarded no amount. Considering the fact that the accident is of the year 2003, this Court deem it appropriate to grant a sum of **Rs.750/-** under this head. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.15,000/-, covered by Ext.A3 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. 23. As compensation towards pain and suffering, 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 the head pain and suffering is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.20,000/-** (30,000 – 10,000). 24. 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.** MACA No.4382 of 2019(A) 11 **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. 25. 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. MACA No.4382 of 2019(A) 12 26. In the instant case, as on the date of accident, the appellant was aged 22 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 **18** applied by the Tribunal is correct and proper. 27. Towards compensation for loss of earning capacity (permanent disability), the Tribunal awarded a sum of Rs.1,29,600/- (4,000 x 12 x 18 x 15/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,250/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 15%, the compensation under the head permanent disability is re-fixed as Rs.1,37,700/- (4,250 x 12 x 18 x 15/100), resulting an additional compensation of **Rs.8,100/-** (1,37,700 – 1,29,600). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.30,000/-. In Ext.A7 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. Considering the nature of injuries sustained and 15% permanent disability on account of those injuries, as assessed in Ext.A7 disability certificate, the compensation awarded by the Tribunal under this head cannot be MACA No.4382 of 2019(A) 13 said to be on the lower side, which requires no enhancement in this appeal. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.64,650/-** (Rupees sixty four thousand six hundred and fifty only) (34,000 + 1,500 + 300 + 750 + 20,000 + 8,100) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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. The appellant shall provide his bank details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer MACA No.4382 of 2019(A) 14 within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN** JV **JUDGE**