Santo Augustine v. Muthupandian and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** ## **MACA.No.466 OF 2007** **AGAINST THE AWARD IN OPMV 827/2003 DATED 26-06-2006 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/S:** **SANTO AUGUSTINE AGED 37 YEARS, THALIPARAMBIL HOUSE,, CHELACHUVADU P.O., KATHIPARATHADOM,, IDUKKI DISTRICT.** **BY ADVS. SRI.RAJESH MATHEW SRI.JESWIN P.VARGHESE SRI.K.RADHAKRISHNAN NAIR** ## **RESPONDENT/S:** **1 P.M.MUTHUPANDIAN. S/O A PANDI, 2272 KAMARAJ NAGAR, BUTLAGUNDU, NILAKKOTTAI TALUK,, DINDIGUL DIST. TAMILNADU. 2 MANAGING DIRECTOR M/S.TVL RANI MANGAMMAL TRANSPORT CORPORATION LTD, BYE PASS ROAD, CHOTTINAICKEN PATTI POST,, DINDIGUL, PIN 624 305, TAMILNADU. 3 JOY PARAMBIL HOUSE MURICKASSERY P.O. IDUKKI DISTRICT. 4 MS.NATIONAL INSURANCE CO.LTD. PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA,, PIN 685584, IDUKKI DISTRICT. R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL R1 BY ADV. SRI.MATHEWS JACOB SR. R1 BY ADV. SRI.SUBHASH CYRIAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ..2.. ## **MACA.No.466 OF 2007** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.827 of 2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, 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 09.06.2003, while he was travelling as a passenger in a jeep bearing registration No.KL-7/H-6060, owned and driven by the 3[rd] respondent and insured with the 4[th] respondent. At the place of accident, the said vehicle was hit by a bus bearing registration No.TN-57/N-0770 driven by the 1[st] respondent and owned by the 2[nd] respondent. In the accident, the appellant/claimant and another sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,21,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 3 remained ## **MACA.No.466 OF 2007** ..3.. absent and they were set _ex parte_ . The 2[nd] respondent, owner of the bus filed written statement admitting the accident; however, denying negligence alleged against the 1[st] respondent driver. It was contended that the accident occurred due to the rash and negligent driving of the jeep by the 3[rd] respondent owner cum driver and that, the compensation claimed is highly excessive and without any basis. 3. The 4[th] respondent insurer of jeep filed written statement admitting the insurance coverage of the said vehicle; however, raising a contention that the policy in question is only an 'Act Only' policy and therefore, liability towards passengers are not covered under that policy. The insurer has also raised other contentions. 4. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A14 were marked on the side of the claimants and the applicant/claimant was examined as PW1. On the side of the respondents, RW1, the driver of the bus, was examined. **MACA.No.466 OF 2007** ..4.. 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 both the drivers. The Tribunal fixed negligence between the 1[st] respondent driver of the bus and the third respondent driver of the jeep in the ratio 70:30 and held liable, the 2[nd] respondent owner of the bus and 3[rd] respondent owner cum driver of the jeep, for the amount of compensation payable to the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.68,425/-, together with interest at the rate of 6% per annum from the date of petition till date of realisation. 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, the learned counsel for the 2[nd] respondent and also the learned counsel for the 4[th] respondent insurer. **MACA.No.466 OF 2007** ..5.. 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 '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 **MACA.No.466 OF 2007** ..6.. 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |1.|Loss of earning|-|6,000| |---|---|---|---| |2.|Transportation expenses|-|2,000| |3.|Treatment expenses|-|4,025/-| |4.|Extra nourishment|-|1,000/-| |5.|Bystander Expenses|-|2,000/-| ## **MACA.No.466 OF 2007** ..7.. |6.<br>Pain and sufferings<br>-<br>15,000/-| |---| |7.<br>Disability<br>-<br>38,400/-| |(Rs.2,000 x 12 x 16 x 10)| |----------| |Total<br>68,425/-| |=======| |12.<br>The accident occurred on 09.06.2003. At the time| |of accident, the appellant was aged 34 years. The appellant| |claimed a monthly income of Rs.4,000/- as bus conductor. No| |materials were produced before the Tribunal to prove the| |monthly income of the appellant. The appellant was examined| |as PW1. 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.| 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 **MACA.No.466 OF 2007** ..8.. 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. 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 ## **MACA.No.466 OF 2007** **==> picture [18 x 8] intentionally omitted <==** 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 2003, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.4,000/- claimed by the appellant is not on the higher side, which is taken as his notional monthly income, for the purpose of assessing compensation under various heads. ## **MACA.No.466 OF 2007** ..10.. 16. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the Out Patient Card. As per medical records, the appellant sustained a lacerated wound 4 x 3 cm on the right thumb exposing bone and tendom and a contusion on dorsum of left hand 4 x 3 cm. Ext, A7 is a copy of the treatment certificate as per which the appellant sustained crush injury on right thumb with near total amputation at IP joint level; Dorsal perinulate carpal dislocation on right wrist; Fracture shaft of third matacarpel of left hand and contusion right side of chest wall. Stump suturing of right thumb was done at the IP level and closed reduction and K wire stabilisation was done for carpal dislocation. Ext.A12 series of medical bills are for a sum of Rs.4,025/-. 17. Ext. A14 is the disability certificate issued by the District Medical Board at Idukki after examining the appellant on 11.02.2005, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, ..11.. ## **MACA.No.466 OF 2007** is assessed as 16%. The disabilities noted in Ext.A14 are post traumatic amputation of thumb at meta carop phalangeal Joint; waisting of Right Thennal eminance of hand; waisting of right forearm and mal-union of fracture of third meta carpel. The Tribunal took the percentage of permanent disability as 10%, since none of the members of the Medical Board was examined. The Tribunal noticed that, even though mal-union is certified, X-ray showing mal-union was not produced. The Tribunal, considering the post traumatic amputation of thumb at Meta-carpo-phalangeal joint, took the permanent disability as 10%. 18. Ext. A14 disability certificate is one issued by the District Medical Board, in which the Medical Board assessed permanent disability as 16%, taking note of the nature of disabilities of the appellant, on account of the injuries sustained in the motor accident. The Tribunal scaled down the percentage of disability from 16% to 10%, without any valid reasons. Considering the nature of injuries sustained and the **MACA.No.466 OF 2007** **==> picture [22 x 6] intentionally omitted <==** disabilities noted in Ext.A14, this Court deem it appropriate to take the percentage of permanent disability as 16%, as assessed by the Medical Board. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.2,000/- per month for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 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.16,000/- (4,000 x 4), resulting an additional compensation of **Rs.10,000/-** (16,000 – 6,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 5 days. 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, as **MACA.No.466 OF 2007** ..13.. 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. 21. Towards bystander expenses the Tribunal awarded a sum of Rs. 2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 5 days. 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 these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 22. Towards treatment expenses, the Tribunal awarded a sum of Rs.4,025/-, covered by Ext.A12 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. **MACA.No.466 OF 2007** ..14.. 23. 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, 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. 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 starts with an operative multiplier of **18** [for the age groups of **MACA.No.466 OF 2007** ..15.. 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 34 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 **16** applied by the **MACA.No.466 OF 2007** ..16.. Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.38,400/- (2,000 x 12 x 16 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 16%, the compensation under the head permanent disability is re-fixed as Rs.1,22,880/- (4,000 x 12 x 16 x 16/100), resulting an additional compensation of **Rs.84,480/-** (1,22,880 – 38,400). 28. The Tribunal awarded no amount towards loss of amenities. Considering the nature of injuries sustained and the permanent disability of 16% assessed by the Medical Board in Ext.A14 disability certificate, the appellant is granted a sum of **Rs. 20,000/-** under this head. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs. 1,14,480/-** (Rupees one lakh fourteen thousand four hundred and eighty **MACA.No.466 OF 2007** ..17.. only) [10,000 + 84,480 + 20,000] 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 and 3[rd] respondent insurers shall satisfy the additional compensation granted in this appeal together with interest, in the ratio 70:30, 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 the amount 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 **MACA.No.466 OF 2007** **==> picture [22 x 8] intentionally omitted <==** copy of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN,** **JUDGE** kkj