Sanal Kumar (Disabled) S/O Gopal Nair v. K. Thangavel and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **MACA.No.866 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1895/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER :** **SANAL KUMAR (DISABLED) S/O.GOPALAN NAIR, KAPPILLIL HOUSE,, MANIKKAMANGALAM, P.O. MATTOOR, KALADY** **BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR** ## **RESPONDENTS/RESPONDENTS:** |**1**|**K.THANGAVEL**| |---|---| ||**S/O. KUMARA SWAMY, NO.61/A5, R.P. PUDUR, MAIN ROAD,**| ||**NAMAKKAL.**| |**2**|**T. RAJENDRAN S/O. THIRUVAKANAR**| ||**S/O.THIRUVAKANAR, NO. 55/5, KONAR STREET, R.**| ||**PUDUPALAYAM.P.O,, RASIPURAM, NAMAKKAL.**| |**3**|**THE NATIONAL INSURANCE CO. LTD.**| ||**NAMAKKAL BRANCH OFFICE, 74-A,, PARAMTHI ROAD,**| ||**NAMAKKAL, PIN - 637 001.**| |**4**|**THE NATIONAL INSURANCE CO. LTD.**| ||**ALWAYE DIVISIONAL OFFICE, P.B. NO. 89,, URUMBATH**| ||**BUILDINGS, PUMP JUNCTION, ALUVA.**| |**5**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**BRANCH OFFICE, OPPOSITE NEW MUNICIPAL BUS STAND,**| ||**THRIPUNITHURA, KOCHI.**| ||**R5 BY ADV. SRI.PMM.NAJEEB KHAN**| ||**R3 BY ADV. SRI.RAJAN P.KALIYATH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.866 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1895 of 2000 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 25.02.2000, while he was walking through the side of a public road. At the place of accident, a tanker lorry bearing registration No.TN-27/C6232 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent hit on a car bearing registration No.KL-7/W-4656 insured with the 4[th] respondent, and the car hit on a trailer bearing registration No.KL-7/R-3573 insured with the 5[th] respondent, which was parked on the side of the road. The appellant/claimant happened to be in between these vehicles. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tanker lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,42,000/- under various heads. **MACA.No.866 OF 2009** **3** 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the tanker lorry remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the tanker lorry during the period from 01.09.1999 to 31.08.2000; however denying negligence alleged against its driver. The insurer contended that the accident occurred due to the negligence on the part of the driver of the car and also the driver of the trailer. The insurer disputed the, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. The 5[th] respondent insurer of the trailer filed written statement admitting insurance coverage of the said vehicle for the period from 28.06.1999 to 27.06.2000. The age, occupation and income of the claimant were disputed. The insurer contended that the compensation claimed under various heads are exorbitant. 5. Before the Tribunal, Exts.A1 to A18 were marked and PWs.1 and 2 were examined on the side of the **MACA.No.866 OF 2009** **4** appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 6. 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 tanker lorry by its driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,70,295/-, which was rounded off to Rs.2,70,300/-, together with interest at the rate of 7% per annum from the date of application till date of realisation, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. 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 respective Standing Counsel for respondents 3 and 5. Since insurance coverage of the **MACA.No.866 OF 2009** **5** offending vehicle is admitted by the 3[rd] respondent insurer, service of notice on respondents 1 and 2 is dispensed with. 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 various 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 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 **MACA.No.866 OF 2009** **6** 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. 12. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Head of claim|Amount awarded in<br>rupees| |---|---| |Loss of income|12,000/-| |Transportation charges|2,000/-| |Extra nourishment|2,000/-| |Bystander’s expenses|3,000/-| |Damage to clothing|250/-| |Diisfiguration|5,000/-| |Loss of amenities|15,000/-| |Pain and suffering|25,000/-| |Disability|64,800/-| **MACA.No.866 OF 2009** **7** |Treatment expenses|1,41,245/-| |---|---| |Total|2,70,295/- is<br>rounded to<br>Rs.2,70,300/-| 13. The accident occurred on 25.02.2000. At the time of accident, the appellant was aged 27 years. The appellant claimed a monthly income of Rs.4,500/- as Operator-cum-Accountant in Gaylord Steels and Cements, Angamaly. The appellant produced Ext.A14 salary certificate issued by one K.A.Devassykutty, who is stated to be the Managing Director of Gaylord Steels and Cements to prove his monthly income. The person, who issued Ext.A14 certificate was not examined to prove the same. In the absence of any reliable materials, considering the oral testimony of the appellant himself as PW1, the Tribunal fixed his monthly income notionally as Rs.2,000/-, for the purpose of assessing compensation under various 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 **MACA.No.866 OF 2009** **8** 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. 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 **MACA.No.866 OF 2009** **9** 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 absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2000, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.2,750/-, for the purpose of assessing compensation under various heads. 17. The document marked as Ext.A7 is the accidentcum-wound certificate and Exts.A8 and A9 are the discharge cards. As per the medical records, the appellant **MACA.No.866 OF 2009** **10** sustained fracture shaft of femur left lower 1/4, fracture shaft of femur right lower 1/3 comminuted, fracture stylcid process right radius, multiple lacerated wounds over the right hand volar aspect and both thigh, multiple abrasions all over the body flexar tendon injury left medial three finger, broken teeth left two incisors, undisplaced fracture meta carpel head 2[nd] , wedge compression fracture left slable, abrasion over right knee, lacerated wounds right thigh posteriorly and right knee, left thigh and volar aspect of left hand. He had undergone inpatient treatment for a period of 79 days in three different spells. Ext.A18 series of medical bills are for a sum of Rs.1,41,240.99/-. 18. Ext.A16 is the disability certificate issued by PW2 doctor at General Hospital, Ernakulam, wherein the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 32%. The disabilities noted in the said certificate are 5-10 varus deformity of left knee, 1cm flexion left knee 80◦, contraction of left palm and medial three fingers with ulnar deviation of fingers, cannot flex three fingers fully, stiffness of left wrist and hand joints low back tenderness and flesion of spine **MACA.No.866 OF 2009** **11** 25% reduced. PW2, in cross examination stated that he has not followed the manual issued by the Central Ministry for assessing the disability. PW2 was not able to explain how he arrived 35% disability. Therefore, the Tribunal took the percentage of permanent disability as 15%. Considering the nature of injuries sustained and the disabilities noted in Ext.A16 and also the deformities seen in Ext.A15 series of photographs, this Court deem it appropriate to take the percentage of disability of the appellant as 18%, for the purpose of granting compensation under various heads. 19. 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.2,750/-, the compensation under the head loss of earning is re-fixed as Rs.16,500/- (2,750 x 6), resulting an additional compensation of **Rs.4,500/-** (16,500 – 12,000). **MACA.No.866 OF 2009** **12** 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 79 days. The accident is of the year 2000. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone in different spells, as borne out from medical records, the compensation under this head is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2000 and the appellant had undergone inpatient treatment for 79 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.11,850/- (150 x 79), resulting an additional compensation of **Rs.8,850/-** (11,850 – 3,000). The compensation under the head extra nourishment is re-fixed **MACA.No.866 OF 2009** **13** as Rs.7,900/- (100 x 79), resulting an additional compensation of **Rs.5,900/-** (7,900 – 2,000). 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2000, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 – 250) **.** 23. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,41,245/-, covered by Ext.A18 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. 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. **MACA.No.866 OF 2009** **14** 25. 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 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. ## 26. In **National Insurance Company Ltd. v.** **MACA.No.866 OF 2009** **15** **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. 27. In the instant case, as on the date of accident, the appellant was aged 27 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 Tribunal is not correct and the proper multiplier to be applied is **17** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.64,800/- (2,000 x 12 x 18 x 15/100). Since the monthly income of the appellant is re-fixed notionally as Rs.2,750/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 18%, the compensation under the head permanent disability is refixed as Rs.1,00,980/- (2,750 x 12 x 17 x 18/100), resulting an additional compensation of **Rs.36,180/-** **MACA.No.866 OF 2009** **16** (1,00,980 – 64,800). 29. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 18% permanent disability on account of those injuries, as taken by this Court, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 – 15,000). 30. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.61,930/-** (Rupees Sixty one thousand nine hundred and thirty only) [4,500 + 1,000 + 8,850 + 5,900 + 500 + 36,180 + 5,000] in this appeal, which will carry interest at the rate of **7%** per annum from the date of petition till realisation, excluding the period of delay of 895 days in filing this appeal, which was condoned by the order dated 21.11.2016 in C.M.Appln.No.995 of 2009. (In view of the delay in taking steps to 4[th] respondent, the rate of interest is fixed as 7%, instead of 8%). The 3[rd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, **MACA.No.866 OF 2009** **17** 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 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 counsel for the insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/20/1