Sameel v. P. Mohammed Rafi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941 MACA.No.3344 OF 2014** **AGAINST THE AWARD IN OPMV 1687/2014 DATED 15-12-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** **SAMEEL, S/O.MUHAMMED, MANAYIL HOUSE, KARTHENI, ANCHACHAVADI(PO), KALIKAVU, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.M.MOHAMED ABDURAHIMAN** ## **RESPONDENT/S:** **1 P.MOHAMMED RAFI, S/O.RAYANKUTTY, PALLATH HOUSE, ANCHACHAVADI, KALIKAVU, MALAPPURAM DISTRICT. 2 C.T.ABUBECKER, S/O.MAMMOOTTY MOLLA, CHERANTHODIKA HOUSE, KARTHENI, ANCHACHAVADI (PO), KALIKAVU, MALAPPURAM DISTRICT. 3 THE NEW INDIA ASSURANCE CO. LTD. VARIKODAN BUILDING, NILAMBUR ROAD, MANJERI (INSURER). R1-2 BY ADV. SRI.C.T.BASHEER R3 BY ADV. SRI.P.JAYASANKAR R3 BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 3344 of 2014 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1687 of 2004 on the file of the Motor Accidents Claims Tribunal, Manjeri, 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 02.08.2004, while he was riding a motorcycle bearing registration No.KL-10/L-8830. At the place of accident, the motorcycle was hit by lorry bearing registration No.KL-10/A3085 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000 under various heads. 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 -3- MACA. No. 3344 of 2014 admitting the insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the claim petition is bad for non-joinder of the owner and insurer of the motorcycle, on which the appellant was the rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A5 series were marked on the side of the appellant/claimant. The disability certificate was marked as Ext.X1. Both sides have not chosen to adduce any oral 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 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 -4- MACA. No. 3344 of 2014 compensation of Rs.66,393/- (which was rounded off to Rs.66,400/-) together with interest at the rate of 7% per annum from the date of petition till realisation, with a cost of Rs.500/-, 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 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 -5- MACA. No. 3344 of 2014 '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 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 -6- MACA. No. 3344 of 2014 principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Transport to the hospital|500| |---|---| |Damage to the clothing|250| |Extra nourishment and|| |Bystander's expenses|3,400| |For review (7 times)|100| |Pain and suffering<br>|12,000| |For loss of income for|| |5 months @ Rs.2500 per month|12,500| |Medical bills<br>|10,043| |For disability (3000x5x18/100)|27,000| ||------------| |Total|66,393| |Rounded to|66,400| ||=======| 12. The accident occurred on 02.08.2004. At the time of accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.6,000/- as a Mason. The appellant has not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, for the purpose of assessing compensation under various -7- MACA. No. 3344 of 2014 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 -8- MACA. No. 3344 of 2014 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. 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 -9- MACA. No. 3344 of 2014 accident, i.e., during the year 2004, 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.4,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate and Ext.A3 series are discharge cards. In the accident, as evident from medical records, the appellant sustained laceration left side of face, abrasion right wrist, right toe and fracture middle of right tibia. He had undergone inpatient treatment for a period of 34 days. Ext.A4 series of medical bills are for a sum of Rs.10,043/-. 17. In Ext.X1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 5%. The Tribunal accepted the permanent disability assessed in Ext.X1, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a -10- MACA. No. 3344 of 2014 sum of Rs.12,500/-, at the rate of Rs.2,500/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 5 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.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.22,500/- (4,500 x 5), resulting an additional compensation of **Rs.10,000/-** (22,500 – 12,500). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 34 days. The accident is of the year 2004. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. 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.1500/-** (2,000 - 500). 20. Towards bystander expenses and extra -11- MACA. No. 3344 of 2014 nourishment, the Tribunal awarded a consolidated sum of Rs.3,400/-. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 34 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 refixed as Rs.5,100/- (150 x 34) and the compensation under the head extra nourishment is re-fixed as Rs.3,400/- (100 x 34), resulting an additional compensation of **Rs.5,100/-** [(5,100 + 3,400) – 3,400]. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2004, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 – 250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.10,043/-, covered by Ext.4 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and -12- MACA. No. 3344 of 2014 reasonable compensation, which requires no enhancement in this appeal. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 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. 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 -13- MACA. No. 3344 of 2014 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. 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 -14- MACA. No. 3344 of 2014 Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.27,000/- (2,500 x 12 x 18 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.48,600/(4,500 x 12 x 18 x 5/100), resulting an additional compensation of **Rs.21,600/-** (48,600 – 27,000). 28. Towards loss of amenities no compensation has been awarded by the the Tribunal. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 5%. Considering the nature of injuries sustained and 5% permanent disability on account of those injuries, assessed in Ext.X1, this Court deem it appropriate to grant an amount of **Rs.5,000/-** as compensation under the head loss of amenities. -15- MACA. No. 3344 of 2014 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.46,700/-** (Rupees forty six thousand seven hundred only) [10,000 + 1,500 + 5,100 + 500 + 3,000 + 21,600 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 2055 days in filing this appeal, which was condoned by the order dated 17.01.2020, subject to the condition that, in case enhanced compensation is granted in this appeal, the appellants shall not be entitled for interest on the said amount for the period of delay. 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, 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 -16- MACA. No. 3344 of 2014 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 to provide his Bank account details 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. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das