Santhamma Joy v. A.A. Jose and HDFC Chubb General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** **MACA.No.1283 OF 2010(C)** **AGAINST THE AWARD IN O.P.(MV) NO.1273/2005 DATED 13-08-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER IN O.P.(MV):** **SANTHAMMA JOY, W/O.JOY SAMUEL, AGED 57 YEARS “BETHEL”, KALAMASSRY P.O., THRIKKAKARA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1 A.A.JOSE, ALUKKAL HOUSE, CROSS BAZAR ROAD, IRINJALAKUDA, THRISSUR. 2 HDFC CHUBB GENERAL INSURANCE COMPANY LTD., 4TH FLOOR, EXPRESS TOWERS, NARIMAN POINT, MUMBAI-21. R2 BY ADV. ARUN KUMAR A R2 BY ADV. SRI.JOHNY THOMAS R2 BY ADV. SRI.ANIL SUBHASH** ## **SRI. A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1283 of 2010(C) -2- ## **JUDGMENT** This appeal is one filed under Section 173 of the Motor Vehicles Act, 1988 challenging the award passed by the Motor Accidents Claims Tribunal, Ernakulam dated 13.08.2009 in O.P. (MV) No.1273 of 2005. The appellant is the claimant in O.P.(MV) No.1273 of 2005, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 12.01.2005, while she was travelling in a car bearing registration No.KL-7/W-9626. At the place of accident, the said vehicle was hit by another car bearing registration No.KL-8/Y6966 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, the 2[nd] respondent insurer filed written statement admitting insurance coverage of the offending car; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the driver, owner MACA No.1283 of 2010(C) -3- and insurer of the car in which the appellant was travelling are necessary parties. The insurer contended further that the compensation claimed under various heads are exorbitant. 3. Before the Tribunal, the claim petition was tried along with the connected case. Exts.A1 to A16 were marked on the side of the claimants and PWs.1 and 2 were examined. 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 occurred due to the rash and negligent driving of the offending car by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,18,000/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the 2[nd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. MACA No.1283 of 2010(C) -4- 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 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 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 MACA No.1283 of 2010(C) -5- 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.|Heads of claim|Amount awarded<br>(in Rs.)| |---|---|---| |1|Transportation, hospitalisation, extra<br>nourishment & damage to clothing|6,500/-| |2|Attendant expenses, etc.|4,500/-| |3|Loss of earning|6,000/-| |4|Treatment expenses|65,000/-| |5|Pain and suffering|15,000/-| |6|Discomforts & inconveniences|6,000/-| |7|For permanent disability|5,000/-| ||**Total**|**Rs.1,18,000/-**| 11. The accident occurred on 12.01.2005. At the time of accident, the appellant was aged 57 years. The appellant claimed a monthly income of Rs.4,000/- as housewife. The appellant was MACA No.1283 of 2010(C) -6- examined as PW2. The Tribunal fixed the notional monthly income of the appellant as Rs.2,000/-, for the purpose of assessing compensation under various heads. 12. 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 MACA No.1283 of 2010(C) -7- point of time. 13. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa** , 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 Rs.6,500/- per month. 14. In **Arun Kumar Agrawal v. National Insurance Company [(2010) 9 SCC 218]** the Apex Court held that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be MACA No.1283 of 2010(C) -8- equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family, i.e., husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term 'services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services MACA No.1283 of 2010(C) -9- rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier. 15. In **Arun Kumar Agrawal** the Apex Court held further that, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. As early as in 1994, the legislature in its wisdom had fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3[rd] income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A of the Motor Vehicles Act does not, in terms apply to the cases in MACA No.1283 of 2010(C) -10- which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in Clause 6 of the Second Schedule of the Motor Vehicles Act and then apply appropriate multiplier keeping in view the judgments 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]** , **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** and also take guidance from the judgment in **Lata Wadha v. State of Bihar [(2001) 8 SCC 197]** . 16. In **Arun Kumar Agrawal** , the Apex Court noticed that, household work performed by women throughout India is more than US$612.8 billion per year (Evangelical Social Action Forum and Health Bridge, p.17). We often forget that the time spent by women in doing household work as homemakers is the time which they can devote to paid work or to their education. This lack of sensitiveness and recognition of their work mainly contributes to women's high rate of poverty and their MACA No.1283 of 2010(C) -11- consequential oppression in society, as well as various physical, social and psychological problems. The Courts and Tribunals should do well to factor these considerations in assessing compensation for housewives who are victims of road accidents and quantifying the amount in the name of fixing 'just compensation'. In **Arun Kumar Agrawal** , the Apex Court did not approve the approach adopted by the Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker, because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. 17. In **Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar [(2015) 4 SCC 237]** the Apex Court reiterated the law laid down in **Arun Kumar Agrawal** . In **Jitendra Khimshankar Trivedi** , the accident occurred on 21.09.1990. The deceased, who was aged 22 years, succumbed to the injuries. In the claim petition it was averred that, at the time of accident, the deceased was a housewife, who was doing embroidery and knitting work. She was earning Rs.900/- per month from the said work and was maintaining her family. The Tribunal observed that in the district of Kutch embroidery work, MACA No.1283 of 2010(C) -12- stitching work and local traditional embroidery work is doing well and had the deceased been alive she would have earned Rs. 1,500/- per month. Therefore, the Tribunal took the monthly income of the deceased as Rs.1,500/-. After deducting 1/3[rd] towards personal and living expenses of the deceased and adopting the multiplier of 18, Tribunal calculated loss of dependency at Rs.2,16,000/-. Adding conventional damages Rs.8,000/-, the Tribunal awarded total compensation of Rs.2,24,000/-. In the appeal filed by the respondents, the High Court of Gujarat at Ahmedabad reduced the monthly income of the deceased as Rs.1,350/-. After deducting 1/3rd towards the personal and living expenses of the deceased and adopting the multiplier of 18, the High Court calculated loss of dependency at Rs.2,09,400/-. Dissatisfied with the quantum of compensation awarded by the High Court, the claimants approached the Apex Court. The Apex Court held that, as observed by the Tribunal, embroidery work, stitching work and local traditional embroidery work was doing well in the district of Kutch and there was good earning. Considering the nature of the work and the oral evidence of the father-in-law and the mother-in-law of the deceased, had the deceased been alive she would have earned MACA No.1283 of 2010(C) -13- not less than Rs.3,000/- per month. Even assuming the deceased was not a self-employed doing embroidery and tailoring work, the fact remains that she was a housewife and a homemaker. It is hard to monetise the domestic work done by a house-mother. The services of the mother/wife is available 24 hours and her duties are never fixed. Courts have recognised the contribution made by the wife to the house is invaluable and that, it cannot be computed in terms of money. A housewife/homemaker does not work by the clock and she is in constant attendance of the family throughout and such services rendered by the homemaker has to be necessarily kept in view while calculating the loss of dependency. Thus even otherwise, taking deceased as the homemaker, it is reasonable to fix her income at Rs.3,000/- per month. 18. In **Jitendra Khimshankar Trivedi** , the Apex Court noticed that, as against the award passed by the Tribunal awarding a total compensation of Rs.2,24,000/-, the claimants have not filed any appeal. Therefore, the Apex Court considered the question whether the income of the deceased could be increased and compensation could be enhanced. The Apex Court held that, in terms of Section 168 of the Motor Vehicles Act, the MACA No.1283 of 2010(C) -14- Courts/Tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the Courts in awarding reasonable compensation was emphasised in **Nagappa v. Gurudayal Singh** **[(2003) 2 SCC 274]** , **Oriental Insurance Company Ltd. v. Mohd. Nasir [(2009) 6 SCC 280]** and **Ningamma v. United India Insurance Company Ltd. [(2009) 13 SCC 710]** . As against the award passed by the Tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of Courts/Tribunals to award just and reasonable compensation, the Apex Court deem it appropriate to increase the compensation. In order to award just and reasonable compensation, the monthly income of the deceased was taken as Rs.3,000/-. After deducting 1/3rd towards the personal and living expenses of the deceased and adopting the multiplier of 18, the Apex Court calculated loss of dependency at Rs.4,32,000/-. 19. In the instant case, the accident occurred on 12.01.2005 and at the time of accident, the appellant was aged 57 years. She claimed a monthly income of Rs.4,000/- as housewife. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of MACA No.1283 of 2010(C) -15- the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and **Syed Sadiq** , the monthly income of a manual labourer or a labourer in an unorganised sector doing his own business as vegetable vendor, fruit vendor, etc., who met with a motor accident in the year 2004, can be notionally fixed as Rs.4,500/-. As held by the Apex Court in **Arun Kumar Agrawal** the gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. Therefore, the monthly income of Rs.4,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 20. The document marked as Ext.A11 is the wound certificate and Exts.A12 to A14 are discharge summaries. As per medical records, in the accident, the appellant sustained oedema and tenderness (L) forearm; lacerated wound (L) leg above ankle; fracture distal end (L) radius; fracture dislocation of distal MACA No.1283 of 2010(C) -16- radio ulna joint; and fracture of (L) tibia. She had undergone inpatient treatment for a total period of 32 days, in three different spells. Ext.A16 medical bills are for a total sum of Rs.1,02,264.65. 21. The document marked as Ext.A15 is the disability certificate issued by the Medical Board at the General Hospital, Ernakulam in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 13%. On examination, the Medical Board noticed tenderness over distal radius (L); Swelling (L) ankle; (L) hand grip Gr.V.; (L) wrist movements - Radial-10[o] , ulnar-15[o] , dorsal-4[o] , palmar-20[o] . (L) knee movements - from 180[o] to 70[o] flexion; (L) ankle movements - from 90[o] to 125[o] plantar flexion, inversion15[o] , eversion-10[o] . X-ray (L) wrist - united # LE radius with buttress plate _in situ_ 0.5cm shortening; (L) leg - united # (L) tibia lower 1/3 with ILN _in situ_ . The Medical Board noticed 7cm long scar volar (L) forearm; 8cm long scar anterior to (L) knee; and 7cm long scar anterior to (L) leg mid third. As evident from Ext.A15, the assessment of disability by the Medical Board was made with ILN (interlocking nailing) and buttress plate _in situ_ . Considering the nature of injuries sustained and the disabilities MACA No.1283 of 2010(C) -17- noted by the Medical Board, the permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 10%, for the purpose of awarding compensation under various heads. 22. Towards loss of earning, the Tribunal awarded a lump sum amount of Rs.6,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, she can be granted loss of earning for a period of 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.14,000/- (4,000 x 4), resulting an additional compensation of **Rs.10,000/-** (16,000 - 6,000). 23. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 32 days, under 3 different spells. The accident is of the year 2005. Towards transportation, hospitalisation, extra nourishment and damage to clothing, the Tribunal awarded a consolidated sum of Rs.6,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the appellant is granted a sum of Rs.3,000/- under the head transportation expenses; Rs.4,800/- (150 x 32) under the head bystander expenses; MACA No.1283 of 2010(C) -18- Rs.3,200/- (100 x 32) under the head extra nourishment; and Rs.750/- under the head damage to clothing, resulting an additional compensation of **Rs.5,250/-** [(3,000 + 4,800 + 3,200 + 750) - 6,500)]. 24. Towards medical expenses, the Tribunal awarded a sum of Rs.65,000/-, covered by Ext.A16 series of medical bills for a total sum of Rs.1,02,264.65. The learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer were permitted to peruse Ext.A16 series of medical bills. After perusing the bills, it is agreed by both sides that an amount of Rs.12,264.65 can be deducted from the total amount covered by Ext.A16 series of medical bills, for the purpose of awarding compensation towards medical expenses. Therefore, the compensation under this head is re-fixed as Rs.90,000/- (1,02,264.65 - 12,264.65), resulting an additional compensation of **Rs.25,000/-** (90,000 - 65,000). 25. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.20,000/-, resulting an MACA No.1283 of 2010(C) -19- additional compensation of **Rs.5,000/-** (20,000 - 15,000). 26. 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. 27. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex MACA No.1283 of 2010(C) -20- 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. 28. In the instant case, as on the date of accident, the appellant was aged 57 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 proper multiplier to be applied is **9** . 29. Towards compensation for permanent disability, the Tribunal awarded a consolidated sum of Rs.5,000/-. Since the monthly income of the appellant is fixed notionally as Rs.4,000/-, applying the multiplier of 9 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.43,200/- (4,000 x 12 x 9 x 10/100), resulting an additional compensation of **Rs.38,200/-** (43,200 - 5,000). 30. Towards discomforts and inconveniences (loss of amenities), the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as taken by this Court, the compensation awarded by the Tribunal under this head is re-fixed MACA No.1283 of 2010(C) -21- as Rs.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000 - 6,000). 31. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.87,450/-** (Rupees eighty seven thousand four hundred and fifty only) [10,000 + 5,250 + 25,000 + 5,000 + 38,200 + 4,000] 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 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 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 submit her 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 MACA No.1283 of 2010(C) **==> picture [23 x 9] intentionally omitted <==** 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** bpr