Sajeevan v. Arjun and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019/9TH ASWINA, 1941** ## **MACA.No.3601 OF 2019** **AGAINST THE AWARD IN OP(MV)632/2016 DATED 26-03-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/PETITIONER:** **SAJEEVAN AGED 43 YEARS S/O. BALAKRISHNAN, MANIKKOTH HOUSE, KARITHIKAPALLI P.O., PUTHALATH KUNI, VILLIAPPALLY VIA, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673 542** **BY ADVS. SRI.ABU MATHEW SRI.AJU MATHEW** ## **RESPONDENTS:** **1 ARJUN AGED 27 YEARS S/O. SURESH, CHALIL PARAMBATH HOUSE, NOW RESIDING AT KANDOTH, MAYYANNUR P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673 104 2 UNITED INDIA INSURANCE CO. LTD., OT BUILDING, VILLIAPPALLY P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673 542, REPRESENTED BY ITS BRANCH MANAGER** ## **BY SRI P.K.MANOJ KUMAR-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.3601 of 2019 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.632 of 2016 on the file of the Motor Accidents Claims Tribunal, Vatakara, which is 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 09.09.2014, while he was travelling in a motorcycle bearing registration No.KL-18/M-6704, as pillion rider. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-18/J-8444 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.13,53,000/-, under different heads, which was limited to Rs.5,00,000/- for the purpose of payment of court fee. 2. Before the Tribunal, the 1[st] respondent/ownercum-rider filed written statement admitting the accident; however, denying the negligence alleged against him. It was M.A.C.A.No.3601 of 2019 3 pointed out that the vehicle involved in the accident was having valid insurance with the 2[nd] respondent/insurer, at the time of accident. 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. The 2[nd] respondent/insurer filed written statement admitting the insurance coverage of the offending motorcycle involved in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cumrider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A10 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. The Ext.C1 disability certificate the Medical Board assessed the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident, at 8%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for M.A.C.A.No.3601 of 2019 4 the purpose of awarding compensation under different heads. 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 riding of the offending motorcycle by the 1[st] respondent owner-cum-rider. Since the insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. 6. Under different heads, the Tribunal awarded a total compensation of Rs.3,13,957/-, which was rounded off to Rs.3,14,000/-, and the insurer was directed to satisfy the award, with interest at the rate of 8% per annum from the date of petition till date of deposit, together with proportionate cost. The insurer was directed to satisfy the award within 30 days from the date of award. The insurer was directed to produce the cheque for Rs.9,373/- in the name of the Tribunal towards Balance Court Fee and Legal Benefit Fund and to produce another cheque for Rs.1,00,000/- in the name of the claimant for disbursement. The insurer was directed to produce another cheque for the M.A.C.A.No.3601 of 2019 5 balance amount in the name of the claimant, which shall be deposited in any of the Nationalised Banks, for a period of one year, for disbursement to the claimant on maturity. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 8. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent owner-cum-rider was dispensed with, by the order of this Court dated 23.09.2019. 9. 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 different heads. 10. 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 M.A.C.A.No.3601 of 2019 6 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. 11. 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 M.A.C.A.No.3601 of 2019 7 ## of equitability. 12. In the instant case, the compensation awarded ## by the Tribunal under different heads reads thus; ||The<br>compensation<br>claimed<br>under<br>different heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning from<br>9.9.2014 to 9.9.2015|2,00,000/-|48,000/-|8000x6 months| |2|Transport to hospital|20,000/-|2,250/-|| |3|Extra nourishment &<br>bystander's expenses|1,30,000/-|3,600/-|| |4|Medical expenses|1,00,000/-|68,907/-|| |5|Damage to clothing<br>and articles|3,000/-|1,000/-|| |6|Pain and suffering|1,00,000/-|50,000/-|| |7|Loss of amenities and<br>enjoyment of life|1,50,000/-|25,000/-|| |8|Future treatment|1,00,000/-|Nil|| |9|Permanent disability|2,00,000/-|1,15,200/-|| |10|Loss of earning power|2,00,000/-|Nil|| |11|Mental shock and<br>agony|50,000/-|Nil|| |12|Disfiguration|1,00,000/-|Nil|| ||Total claim<br>Limited to|13,53,000/-<br>**5,00,000/-**|3,13,957/-|Rounded to<br>**Rs.3,14,000/-**| 13. The accident occurred on 09.09.2014. At the time of accident, the appellant was aged 40 years. He claimed a monthly income of Rs.35,000/- as a Painting Artist. The appellant produced Ext.A10 Fine Arts Certificate issued by the Board of Technical Examination, Kerala in respect of an examination conducted in September, 2000. No documents M.A.C.A.No.3601 of 2019 8 were produced before the Tribunal to prove the monthly income of the claimant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.8,000/-, for the purpose of assessing compensation under different heads. 14. 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 M.A.C.A.No.3601 of 2019 9 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. 15. 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. 16. In the instant case, the accident occurred on M.A.C.A.No.3601 of 2019 10 09.09.2014. At the time of accident, the appellant was aged 40 years. He claimed a monthly income of Rs.35,000/- as a Painting Artist. 17. The learned counsel for the appellant would place reliance on the judgment of the Apex Court in **Shivakumar M. v. Managing Director, BMTC [2017 (5) SCC 79]** , wherein the Apex Court notionally fixed the monthly income of a Painter by profession, who met with a motor accident in the year 2013, while living in Bangalore, as Rs.15,000/-. 18. In **Shivakumar's case** , the claimant mounted the box and he was examined before the Tribunal as PW1. In the absence of any serious dispute on the part of the respondents on his avocation and income of the claimant, the Apex Court held that, the Tribunal and the High Court should have accepted the evidence of the claimant as to his monthly income. In the instant case, the appellant has not chosen to mount the box to prove his monthly income. 19. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, and taking note of the fixation of notional monthly income by the Apex Court in M.A.C.A.No.3601 of 2019 11 the decisions referred to supra, this Court deem it appropriate to refix the monthly income of the appellant notionally as Rs.9,500/-, for the purpose of assessing compensation under different heads. 20. As per medical records, the appellant had sustained fracture on right zygomticomaxillary complex, abrasion over both knees; and contusion on right zygomatic area. The document marked as Ext.A3 is the wound certificate. Ext.A4 is the outpatient record; Ext.A5 is discharge advice; Ext.A6 is discharge summary; and Ext.A7 is the CT Scan report. He appellant had undergone inpatient treatment for a period of four days. He had undergone extraction of 17, 18 teeth; reduction of fracture through right sulcular incision and suturing done with vicryl, on 10.09.2014. 21. In Ext.C1 is the disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 8%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under different heads. M.A.C.A.No.3601 of 2019 12 22. Towards loss of earning, the Tribunal awarded a sum of Rs.48,000/-, at the rate of Rs.8,000/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.9,500/-, the compensation under the head loss of earning is re-fixed as Rs.57,000/- (9,500x6), resulting an additional compensation of **Rs.9,000/-** . 23. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,250/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,600/-. 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. 24. The Tribunal awarded no amount towards bystander expenses. Considering the fact that the appellant M.A.C.A.No.3601 of 2019 13 had undergone inpatient treatment a period of four days, this Court deem it appropriate to grant a sum of **Rs.1,200/-** (300x4) as compensation under this head. 25. 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 2014, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 26. Towards medical expenses, the Tribunal awarded a sum of Rs.68,907/-, covered by Ext.A8 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. 27. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. 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 M.A.C.A.No.3601 of 2019 14 head. 28. Towards loss of amenities the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and 8% permanent disability of the appellant, on account of the injuries sustained, as certified in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 29. 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 M.A.C.A.No.3601 of 2019 15 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. 30. 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. 31. In the instant case, as on the date of accident, the appellant was aged 40 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 **15** applied by the Tribunal is correct and proper. 32. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,15,200/- (8,000x12x M.A.C.A.No.3601 of 2019 16 15x8/100). Since the monthly income of the appellant is refixed notionally as Rs.9,500/-, the compensation under this head is re-fixed as Rs.1,36,800/- (9,500x12x15x 8/100), resulting an additional compensation of **Rs.21,600/-** . 33. In the result, the appellant will be entitled for an additional compensation of **Rs.32,300/-** (Rupees Thirty two thousand and three hundred only) [9,000 + 1,200 + 500 + 21,600] 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 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