Sam Mathew Jacob Manchayil v. Denny Kurian Pokkaraniyil and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** **MACA.No.1364 OF 2006** **AGAINST THE AWARD IN OP(MV)No.2002/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM** ## **APPELLANT/PETITIONER:** **SAM MATHEW JACOB MANCHAYIL HOUSE, PARIPPU P.O., KOTTAYAM.** **BY ADV. SRI.SANTHOSH PETER (MAMALAYIL)** ## **RESPONDENTS/RESPONDENTS:** **1 DENNY KURIAN POKKARANIYIL HOUSE, ONAMTHURUTHU P.O., KOTTAYAM.** **2 THE NEW INDIA ASSURANCE CO. LTD. KOTTAYAM DIVISION, REPRESENTED BY ITS DIVISIONAL MANAGER.** **R2 BY ADV. SRI.A.A.ZIYAD RAHMAN, SC, NEW INDIA ASSURANCE COMPANY LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1364 of 2006 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2002 of 2002 on the file of the Motor Accidents Claims Tribunal, Kottayam, 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 24.01.2002, while he was travelling as a pillion rider on a scooter bearing registration No.KL-5D/9651, which was carrying rider and two pillion riders. At the place of accident, the scooter was hit by an autorickshaw bearing registration No.KL-5H/3516 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the rider and both pillion riders on the scooter sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the autorikshaw remained absent. The 2[nd] respondent insurer filed written statement admitting insurance coverage of MACA No.1364 of 2006 -:3:- the autorickshaw involved in the accident; however, denying the negligence alleged against its driver. It was contended that the accident occurred due to the rash and negligent riding of scooter by its rider, who is the claimant in O.P.(MV)No.2002 of 2002. The insurer contended that the claimant had also contributed to the cause of the accident and that, the compensation claimed under various heads is highly excessive. 3. Before the Tribunal, claim petition was tried along with connected matters. Exts.A1 to A37 were marked on the side of the claimants. The respondents have not chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident happened because of the negligence of the 1[st] respondent driver of the autorickshaw. The Tribunal found that the place of accident is 15cms east from the western tar end of the road, which indicate that the rider of the scooter was keeping left side and the autorickshaw went off side and hit against the scooter. The Tribunal found further that, apart from overloading, there is no evidence of negligence from the part of the riders of the MACA No.1364 of 2006 -:4:- scooter. Under various heads, the Tribunal awarded a total compensation of Rs.1,18,840/-. Since, at the time of accident, the scooter was carrying more than one pillion rider, in violation of the traffic rules, the Tribunal held that, as law barkers, the claimants will have to suffer 20% of the award amount for their act of neglect of the law of the land. Accordingly, the claimant was found entitled only for a sum of Rs.1,18,840/-, together with interest at the rate of 6% per annum from the date of petition till date of deposit, with proportionate cost of Rs.1,000/-, and the 2[nd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads and feeling aggrieved by the award to the extent of limiting the entitlement only to 80% of the total compensation, 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 2[nd] respondent/insurer. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the MACA No.1364 of 2006 -:5:- compensation awarded by the Tribunal under various heads; and whether the award to the extent of limiting the entitlement of the appellant only to 80% of the total compensation can be sustained in law. 8. In **Binoj Antony v. New India Assurance Co. Ltd. [2014 (1) KLT 393]** a Division Bench of this Court held that, the mere fact that a motorcycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. One can easily visualise a case where a motorcycle with two pillion riders was stationary on the right side of the motorcycle on a road and another vehicle comes from behind and hits the vehicle. In such a case, the mere fact that the motorcycle was carrying two pillion riders cannot spell out negligence on the part of the rider of the motorcycle or even on the two pillion riders. It is possible to visualise several other similar circumstances, where mere carrying of two pillion riders cannot possibly contribute to an accident as such. Therefore, the ratio of the decision in **Pournami v. Sandhya Sudheer [2008 (4) KLT 817]** has to MACA No.1364 of 2006 -:6:- be considered in the light of the facts of that case. 9. In **Binoj Antony** , on the facts of the case, the Division Bench noticed that, the scene mahazar proved that the accident occurred 50cms from the southern tar end. The appellant was going from east to west. That being so, he was thoroughly on his right side of the road. The tipper lorry, which is the other vehicle involved in the accident, was totally on the wrong side of the road. In view of those facts, the Division Bench was unable to hold that the carrying of two pillion riders by the appellant on his motorcycle contributed to the accident to any extent whatsoever. Therefore, the Division Bench held that there was no contributory negligence on the part of the appellant, which contributed to the accident to any extent. Consequently, the Division Bench vacated the finding of the Tribunal that there was 25% contributory negligence on the part of the appellant and declared that the insurer of the tipper lorry is liable to satisfy the award to the full extent without any deduction for contributory negligence. 10. In the instant case, as already noticed, in the impugned award the Tribunal found that the place of accident is MACA No.1364 of 2006 -:7:- 15cms east from the western tar end of the road, which indicate that the rider of the scooter was keeping left side and the autorickshaw went off side and hit against the scooter. The Tribunal found further that, apart from overloading, there is no evidence of negligence from the part of the riders of the scooter. It was in such circumstances that the Tribunal, in the impugned award, concluded that the accident happened because of the negligence of the 1[st] respondent driver of the autorickshaw. 11. In the instant case, at the time of accident, apart from the rider of the motorcycle, there were two pillion riders in violation of Section 128 of the Motor Vehicles Act. Sub-section (1) of Section 128 provides that, no driver of a two-wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver’s seat with appropriate safety measures. If the violation of the said statutory rule had resulted in the accident, inference can certainly be drawn that the person who violated that rule had contributed to the accident. But mere violation of a statutory rule cannot lead to an inference that the accident was on account of MACA No.1364 of 2006 -:8:- negligence. Evidence has to be adduced in order to establish that the violation of a statutory rule had resulted in negligence, which in turn had resulted in the accident. Then proportionate contributory/composite negligence could be attributed to the persons who violated that statutory rule. 12. In the instant case, there in nothing on record to suggest that the violation of Section 128 of the Motor Vehicles Act had resulted in negligence, which in turn had resulted in the accident. In the absence of any such evidence, mere contravention of Section 128 of the Act cannot be held to have resulted in the accident. In that view of the matter, the impugned award to the extent of limiting the entitlement of the appellant only to 80% of the total compensation cannot be sustained in law and the same is hereby set aside, by holding that the appellant is entitled for the entire compensation awarded by the Tribunal. ## 13. 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 MACA No.1364 of 2006 -:9:- 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. 14. 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. MACA No.1364 of 2006 -:10:- 15. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus; ||Heads of claim|Amount awarded| |---|---|---| |1|Loss of earning|Rs.12,000/-<br>(2,000 X 6)| |2|Transport to hospital|Rs.1,750/-<br>(Ext.A21 bills)| |3|Extra<br>nourishment<br>&<br>bystander's expenses|Rs.5,000/-| |4|Medical expenses|Rs.41,700/-<br>(Ext.A20 medical bills)| |5|Damage to clothing|Rs.300/-| |6|Pain and suffering|Rs.20,000/-| |7|Loss of amenities|Rs.15,000/-| |8|Future treatment|Rs.5,000/-| |9|Disability compensation|Rs.40,800/-<br>(2,000 x 12 x 17 x 10%)| |10|Disfiguration|Rs.7,000/-| ||Total|Rs.1,48,550/-<br>(awarded 80% -<br>Rs.1,18,840/-)| 16. The accident occurred on 24.01.2002. At the time of accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.4,800/- as Advocate Clerk. In order to prove monthly income, the appellant produced Ext.A19 certificate dated 07.06.2005 issued by Advocate Dominic Sebastian of Kottayam Bar, as per which his monthly income is around Rs.4,000/- per month, from 2001 onwards. The document marked as Ext.A18 is a copy of the identity card. MACA No.1364 of 2006 -:11:- Ext.A19 certificate was not proved by examining the person concerned. 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.2,000/-, for the purpose of assessing compensation under various heads. ## 17. 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, MACA No.1364 of 2006 -:12:- 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. 18. 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. 19. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., MACA No.1364 of 2006 -:13:- during the year 2002, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the materials placed on record as Exts.A17 and A18, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,750/-, for the purpose of assessing compensation under various heads. 20. As per medical records, in the accident, the appellant had sustained penetrating wound right forefoot; punctured wound 6x6cm, 9x5cm, 5x5cm on the right foot; and lacerated wound 10x3cm on right chin. He sustained Type II open fracture 1[st] , 2[nd] and 3[rd] metatarsal; and communited fracture right patella. Ext.A6 is a discharge card issued from Medical College Hospital, Kottayam, as per which he was treated by wound debridement and partial patelactomy. As per Ext.A11 medical certificate issued from the Medical College Hospital, Kottayam the appellant underwent inpatient treatment for multiple injuries on right leg from 24.01.2002 to 29.01.2002. As per Ext.A7 medical certificate, he underwent inpatient treatment from 14.02.2002 to 08.04.2002. As per Ext.A8 medical certificate issued by Dr.Lini Susan Mathew, the appellant underwent MACA No.1364 of 2006 -:14:- treatment from 18.04.2002 to 04.06.2002 for post traumatic stiffness of knee and ankle joint. As per Ext.A9 discharge summary issued from Anugraha Orthopedics Hospital, Kottayam the appellant underwent inpatient treatment from 10.06.2002 to 05.07.2002. As per Ext.A10 out-patient ticket issued from Medical College Hospital, Kottayam fresh AK cast with ‘K’ wire fixation was done on 14.02.2002. As per Ext.A12 discharge summary issued from Bharat Hospital, Kottayam the appellant was admitted in that hospital on 30.04.2003 with old Type III open fracture 2[nd] , 3[rd] metatarsal and fracture patella with non healing ulcer over the anterior and medial aspect of right ankle and foot. He developed a wound over the medial aspect of right ankle in a shoe bite, which ultimately resulted in a non-healing ulcer. He also developed infection over the original wound for which split thickness skin grafting was done under general anaesthesia on 06.05.2003. Ext.A14 is a prescription of Ayurvedic medicines issued from B.M.Pharmacy, Olassa. Ext.A15 is the Ayurvedic prescription issued by Dr.Dharmarajan, Kottayam. Ext.A16 is the prescription issued by Dr.Chithambram, Pala. Ext.A17 is the certificate issued by Dr.P.R.Kumar, Medicare MACA No.1364 of 2006 -:15:- Hospital, Parippu, certifying daily dressing of wound from 07.01.2005. 21. In Ext.A13 disability certificate issued by an individual doctor, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. Ext.A13 disability certificate was not proved by examining the doctor concerned. Therefore, the Tribunal did not accept the permanent disability assessed in Ext.A13. However, considering the physical condition of the appellant, as evident from Ext.A22 photographs, the Tribunal fixed the percentage of disability as 10%, instead of discarding Ext.A13 disability certificate in toto. 22. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- 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 re-fixed notionally as Rs.3,750/-, the compensation under the head loss of earning is re-fixed as Rs.22,500/- (3,750 x 6), resulting an additional MACA No.1364 of 2006 -:16:- compensation of **Rs.10,500/-** (22,500 – 12,000). 23. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 83 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,750/-. 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.5,000/-, resulting an additional compensation of **Rs.3,250/-** (5,000 – 1,750). 24. Towards bystander expenses and extra nourishment, the Tribunal awarded a consolidated sum of Rs.5,000/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 83 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.12,450/- (150 x 83), and the compensation under the head extra nourishment is re-fixed as Rs.8,300/- (100 x 83), resulting an additional compensation of **Rs.15,750/-** [(12,450 + 8,300) – 5,000]. MACA No.1364 of 2006 -:17:- 25. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.300/-. The accident is of the year 2002. Therefore, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.450/-** (750 - 300). 26. Towards medical expenses, the Tribunal awarded a sum of Rs.41,700/-, covered by Ext.A20 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.20,000/-. 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 is refixed as Rs.30,000/-, resulting an additional compensation of **Rs.10,000/-** (30,000 – 20,000). 28. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its MACA No.1364 of 2006 -:18:- 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 61 to 65 years and multiplier of **5** for 66 to 70 years. 29. 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 MACA No.1364 of 2006 -:19:- in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 30. 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 17 applied by the Tribunal is not correct and the proper multiplier to be applied is **18** . 31. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.40,800/- (2,000 x 12 x 17 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,750/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.81,000/- (3,750 x 12 x 18 x 10/100), resulting an additional compensation of **Rs.40,200/-** (81,000 – 40,800). 32. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 10%. Considering the nature of injuries sustained and the MACA No.1364 of 2006 -:20:- permanent disability on account of those injuries, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 33. The impugned award, to the extent of limiting the entitlement of the appellant only to 80% of the total compensation, has already been set aside in this appeal, by holding that the appellant is entitled for the entire compensation awarded by the Tribunal. Therefore, the appellant will be entitled for payment of the balance compensation of **Rs.29,710/-** (1,48,550 – 1,18,840) awarded by the Tribunal, together with interest at the rate of **8%** per annum from the date of petition till realisation. 34. In the result, the appellant/claimant will be entitled for payment of an additional/balance compensation of **Rs.1,09,860/-** (Rupees one lakh nine thousand eight hundred and sixty only) (10,500 + 3,250 + 15,750 + 450 + 10,000 + 40,200 + 29,710) 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/balance MACA No.1364 of 2006 -:21:- 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/balance 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 account 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, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** vps