Sajesh v. Afrin Banu and Mawdsley L.A. and Shriram General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941** ## **MACA.No.3747 OF 2019** **AGAINST THE AWARD IN O.P.(MV) NO.825/2016 DATED 08-05-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA.** ## **APPELLANT/PETITIONER:** **SAJESH, AGED 43 YEARS, S/O.VISWAMBARAN, VATTOLY HOUSE, MATTATHOORKUNNU P.O., MOOLAKUDAM, KODAKARA, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**AFRIN BANU,**| |---|---| ||**W/O.ABBAS,**| ||**357 GANDHI NAGAR,**| ||**MADUKKARARI, COIMBATORE,**| ||**TAMIL NADU.**| |**2**|**MAWDSLEY L.A.,**| ||**S/O.R.MAWDSLEY,**| ||**10/136A, NACHIMUTHU GOUNDER STREET,**| ||**KURICHI, COIMBATORE,**| ||**TAMIL NADU.**| |**3**|**SHRIRAM GENERAL INSURANCE CO.LTD.,**| ||**REPRESENTED BY MANAGER,**| ||**BRANCH OFFICE, NEAR MATHRUBHOOMI,**| ||**VELIYANNOOR ROAD, THRISSUR-680021.**| |**R3**|**BY ADV. SRI.R.AJITH KUMAR (128/84)**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3747 of 2019 -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.825 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda, 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 21.01.2016, while he was riding a motorcycle bearing registration No.KL-08/V-4489. At the place of accident, the motorcycle hit on a pickup van bearing registration No.TN37/BH-8038 parked on the public road, which was 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 negligence of the 2[nd] respondent driver of the pickup van, the appellant/claimant filed claim petition before the Tribunal, claiming a total compensation of Rs.16,86,500/- 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 policy of the MACA.No.3747 of 2019 -3- offending vehicle; however, denying the negligence alleged against the 2[nd] respondent driver. It was pointed out that the vehicle involved in the accident was having valid insurance, 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. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant/claimant. The report of the Medical Board was marked as Ext.X1. 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 negligence on the part of the 2[nd] respondent driver of the pickup van. 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.6,05,500/-, and the insurer was directed to satisfy the award, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate cost. 5. Dissatisfied with the quantum of compensation MACA.No.3747 of 2019 -4- awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant and also Sri.R.Ajith Kumar Varma, the learned counsel for the 3[rd] respondent insurer. Since insurance coverage of the offending vehicle is not in dispute, service of notice on 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 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 MACA.No.3747 of 2019 -5- 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 the Tribunal under various heads reads thus; |Sl.<br>No.|Head of Claim|Amount<br>claimed<br>(Rs.)|Amount<br>allowed<br>(Rs.)|Basis Vital details in<br>a nutshell| |---|---|---|---|---| |1|Loss of earnings|2,00,000|63,000|| |2|Transportation<br>expenses|15,000|4,000|| |3|Extra nourishment|10,000|1,000|| |4|Damage to clothing|1,500|1,000|| MACA.No.3747 of 2019 -6- |5|Attendants expenses|15,000|5,400|| |---|---|---|---|---| |6|Medical expenses|1,60,000|2,24,300|| |7|Pain and suffering|1,00,000|50,000|| |8|Permanent disability|10,00,000|2,26,800|(9000x12x15x14%)| |9|Loss of amenities|1,00,000|30,000|| |10|Future treatment<br>expenses|50,000|Nil|| |11|Loss of marriage life|15,000|Nil|| |12|Disfiguration|20,000|Nil|| ||Total|16,86,500/-|6,05,500/-|Rs.6,05,500/- along<br>with 8% interest p.a.<br>from 22-07-2016 till<br>realisation.| 11. The accident occurred on 21.01.2016. At the time of accident, the appellant was aged 40 years. He claimed a monthly income of Rs.30,000/- as carpenter. However, no reliable materials were placed on record before the Tribunal in order to substantiate the said fact. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.9,000/-, for the purpose of assessing compensation under various heads. 12. Placing reliance on Ext.A1 FIR in Crime No.157 of 2016 of Pudukkad Police Station dated 22.01.2016, the learned counsel for the appellant would point out that, in the First Information Statement recorded on 22.01.2016, the appellant MACA.No.3747 of 2019 -7- has stated that he is a carpenter. 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** MACA.No.3747 of 2019 -8- **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. 15. 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 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 different heads. MACA.No.3747 of 2019 -9- 16. The injuries sustained by the appellant, as borne out from Ext.A3 wound certificate, are lacerated wound over anteromedial aspect of lower thigh; and lacerated wound below left patella; Type III B supracondylar fracture left femur with inter condylar extension. As per Ext.A6 discharge summary, the appellant remained inpatient for the period from 21.01.2016 to 03.02.2016 and thereafter, from 07.06.2017 to 12.06.2017. The implants were removed during the second admission. Ext.A6 discharge summary would show that the fracture has united well. Though, in Ext.A8 disability certificate, the permanent disability of the appellant was assessed as 27%, when the appellant was referred to the Medical Board, the disability was assessed as 14% in Ext.X1 report of the Medical Board. The disabilities noted in Ext.X1 report are shortening of left lower limb by 6cms; felxion of left knee reduced by 20%; and tenderness over the fracture site. The appellant is not able to squat and there is wasting of quadriceps muscles. There is a thick scar over the left thigh of 10cms length. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.63,000/-, at the rate of Rs.9,000/- for a period of 7 months. Considering the nature of injuries sustained and the MACA.No.3747 of 2019 -10- treatment the appellant had undergone, the assessment of loss of earnings for a period of 7 months made by the Tribunal warrants no interference. 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.73,500/- (10,500 x 7), resulting an additional compensation of **Rs.10,500/-** (73,500 – 63,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 18 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards attendant expenses (bystander expenses) the Tribunal awarded a sum of Rs.5,400/- (300 x 18). Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2016 and the appellant had undergone inpatient treatment for 18 days. Considering the nature of injuries sustained and the treatment the appellant MACA.No.3747 of 2019 -11- had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head attendant expenses (bystander expenses) represents just and reasonable compensation, which requires no enhancement in this appeal. The compensation under the head extra nourishment is re-fixed as Rs.3,600/- (200 x 18), resulting an additional compensation of **Rs.2,600/-** (3,600 – 1,000). 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.2,24,300/-, covered by Ext.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. 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** MACA.No.3747 of 2019 -12- **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 61 to 65 years and multiplier of **5** for 66 to 70 years. ## 23. 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 MACA.No.3747 of 2019 -13- paragraph 42 of the said judgment. 24. 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. 25. Towards permanent disability, the Tribunal awarded a sum of Rs.2,26,800/- (9,000 x 12 x 15 x 14/100). Since the monthly income of the appellant is notionally fixed as Rs.10,500/-, applying the multiplier of 15 applicable to the age group of the appellant and percentage of disability as 14%, as assessed in Ext.X1 disability certificate, the compensation under the head permanent disability is re-fixed as Rs.2,64,600/- (10,500 x 12 x 15 x 14/100), resulting an additional compensation of **Rs.37,800/-** (2,64,600 – 2,26,800). 26. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. Towards loss of amenities the Tribunal awarded a further sum of Rs.30,000/-. Considering the nature of injuries sustained and the treatment MACA.No.3747 of 2019 -14- the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads may appear to be on the higher side. The disabilities noted in Ext.X1 report of the Medical Board, which is one dated **23.03.2019** , are shortening of left lower limb by 6cms; felxion of left knee reduced by 20%; and tenderness over the fracture site. The appellant is not able to squat and there is wasting of quadriceps muscles. Considering the nature of injuries sustained and disabilities noted in Ext.X1 report of the Medical Board, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.51,400/-** (Rupees fifty one thousand and four hundred only) [10,500 + 2,600 + 500 + 37,800] 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, MACA.No.3747 of 2019 -15- if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. Payment 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr