Sajeevan v. Faisal, Siddique, The New India Assurance Co. Ltd., Ijas Ahammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA, 1941** ## **MACA.No.2337 OF 2013** **AGAINST THE AWARD IN OP(MV) 630/2010 DATED 30-08-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/PETITIONER:** **SAJEEVAN** **AGED 35 YEARS S/O.BALAN, PULIYANAR PARAMBIL HOUSE, P.O.KARA, KODUNGALLUR, TRICHUR DISTRICT.** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER** ## **RESPONDENTS/RESPONDENTS:** **1 FAISAL S/O.MUHAMMED, INTHINUL HOUSE, P.O.ELOOR, ERNAKULAM DISTRICT, PIN-683501.** **2 SIDDIQUE S/O.MUHAMMED, PAZHUPARAMBIL HOUSE, P.O.AZHICODE, PAY BAZAR, KODUNGALLUR, TRICHUR DISTRICT, PIN-680666.** **3 THE NEW INDIA ASSURANCE CO.LTD. SUB JAIL ROAD, ALUVA, PIN-683101.** **4 IJAS AHAMMED 2258/14, CHALLIPARAMBIL HOUSE, P.O.ERIYAD, KODUNGALLUR, PIN-680666.** **R3 BY ADV. SRI.P.K.BABU R3 BY ADV. SRI.A.A.ZIYAD RAHMAN, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2337 OF 2013** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.630 of 2010 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 22.4.2010, while he was travelling on a motorcycle bearing registration No.KL8/AH-6080, as a pillion rider. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-7/H1825, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.13,46,000/- under various heads, which was limited to Rs.13,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; **MACA.No.2337 OF 2013** 3 however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of the motorcycle on which the appellant/claimant was travelling as a pillion rider. 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 A13 were marked on the side of the appellant/claimant. The appellant was examined as PW1. The report of the Medical Board at the Medical College Hospital, Thrissur was marked as Ext.X1. 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 the lorry by the 2[nd] respondent driver. Since insurance coverage of the offending 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.5,95,950/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost. The 3[rd] respondent insurer **MACA.No.2337 OF 2013** 4 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 and also the learned Standing Counsel for the 3[rd] 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 **MACA.No.2337 OF 2013** 5 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 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<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis vital details in<br>a nut shell| |---|---|---|---|---| |1|Loss of earning (Total)|1,00,000|80,000|Rs.4,000<br>x<br>20<br>months| |2|Transportation expenses|10,000|1,000|| |3|Medical & miscellaneous|5,00,000|2,95,400|| |4|By-stander's expenses|30,000|14,550|Rs.150 x 97 days| |5|Extra nourishment|5,000|500|| |6|Damage to clothings|1,000|500|| **MACA.No.2337 OF 2013** 6 |7|Permanent disability|4,00,000|1,44,000|Rs.4,000 x 12 x 15<br>x 20%| |---|---|---|---|---| |8|Pain and suffering|50,000|30,000|| |9|Loss of earning power|2,00,000|--|| |10|Loss of amenities|50,000|30,000|| ||Total|13,46,000/-<br>(limited to<br>Rs.<br>13,00,000)|5,95,950/-|Rs.5,95,950 along<br>with interest at the<br>rate of 7.5% p.a.<br>From 3.7.2010 till<br>date of deposit| 12. The accident occurred on 22.4.2010. At the time of accident, the appellant was aged 35 years. He claimed a monthly income of Rs.6,000/- as Welder. No reliable materials were placed before the Tribunal to prove the monthly income of the appellant. The appellant was examined as PW1 and he has produced Ext.A13 National Trade Certificate. In the absence of any reliable materials, the Tribunal fixed the monthly 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 **MACA.No.2337 OF 2013** 7 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 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. **MACA.No.2337 OF 2013** 8 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2010, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,000/claimed by the appellant in the claim petition is not on the higher side, which is taken as his notional monthly income, for the purpose of awarding compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate and Exts.A5 to A7 are discharge summaries. As per Ext.A3 wound certificate, the appellant sustained lacerated wound on the right side of humerus, forehand, right forearm and right hand and lower thigh, fracture of humerus and clavicle right side, fracture of nasal bone, right lateral occipital wall, sub arachnoid bleed, fracture of lower end of femur and tibia right side. Exts.A5 and A6 are the discharge summaries from Medical Trust Hospital, Ernakulam, as per which the appellant had undergone inpatient treatment for the period from 22.4.2010 to 22.5.2010 and **MACA.No.2337 OF 2013** 9 thereafter from 6.7.2010 to 8.7.2010. Ext.A7 discharge summary is for the period from 20.12.2010 to 27.12.2010. The document marked as Ext.A8 is a certificate from Government Ayurveda Hospital, Azhikode regarding the inpatient treatment he had undergone for the period from 29.8.2011 to 26.10.2011. Exts.A9 and A10 series of medical bills are for a total sum of Rs.2,95,400/-. 17. Ext.X1 is the disability certificate issued by the Medical Board at Medical College Hospital, Thrissur in which the permanent disability of the appellant, on account of the injuries sustained in the accident is assessed as 40%. The Tribunal took the percentage of permanent disability noticed 20%, on seeing the appellant in open court. The Tribunal noticed that the appellant cannot lift his arm and his other movements are also affected, disabling him from doing the work. The Tribunal, without any valid reasons, reduced the percentage of disability to 20%. Having considered the nature of disabilities noted by the Medical Board in Ext.X1 disability certificate, this Court deem it appropriate to accept 40% permanent disability assessed in Ext.X1 for the purpose of granting compensation under the head permanent disability, since the appellant is a welder by **MACA.No.2337 OF 2013** 10 profession. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.80,000/-, at the rate of Rs.4,000/- per month for a period of 20 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 20 months fixed by the Tribunal for granting loss of earning is not on the lower side. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.1,20,000/- (6,000 x 20), resulting an additional compensation of **Rs.40,000/-** (1,20,000 – 80,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 97 days. 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.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 - 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.14,550/- (150 x 97). Towards extra nourishment, the **MACA.No.2337 OF 2013** 11 Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2010 and the appellant had undergone inpatient treatment for 97 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.21,825/- (225 x 97), resulting an additional compensation of **Rs.7,275/-** (21,825 – 14,550). The compensation under the head extra nourishment is re-fixed as Rs.14,550/- (150 x 97), resulting an additional compensation of **Rs. 14,050/-** (14,550 - 500). 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2010, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.500/-** (1,000 - 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.2,95,400/-, covered by Exts.A9 and A10 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. **MACA.No.2337 OF 2013** 12 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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 head. 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. 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 **MACA.No.2337 OF 2013** 13 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. 26. In the instant case, as on the date of accident, the appellant was aged 35 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 not correct and the proper multiplier to be applied is **16** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,44,000/- (4,000 x 12 x 15 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of **MACA.No.2337 OF 2013** 14 permanent disability as 40%, the compensation under the head permanent disability is re-fixed as Rs.4,60,800/- (6,000 x 12 x 16 x 40/100), resulting an additional compensation of **Rs.3,16,800/-** ( 4,60,800 -1,44000). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.30,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. Considering the nature of injuries sustained and the permanent disability on account of those injuries assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.40,000/-, resulting an additional compensation of **Rs.10,000/-** (40,000 – 30,000). In the result, the appellant will be entitled for payment of an additional compensation of **Rs.3,89,625/-** (Rupees three lakhs eighty nine thousand six hundred and twenty five only) [40,000 + 1,000 + 7,275 + 14,050 + 500 + 3,16,800 + 10,000] 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 **MACA.No.2337 OF 2013** 15 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 the amount to the appellant/claimant shall be 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** JV