Santosh s/o Baby v. Gracy Antony, Jolly, The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941** **MACA.No.2026 OF 2010** **AGAINST THE AWARD IN OP(MV)No.361/2007 DATED 30-04-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER IN OP(MV):** **SANTHOSH S/O BABY, PULLOLICKAL HOUSE, POOLANI DESOM, MELOOR VILLAGE & P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS IN OP(MV):** **1 GRACY ANTONY W/O ANTONY, CHAKKALAMUTTATH HOUSE, OLLUR.P.O, THRISSUR DISTRICT,PIN-680306. 2 JOLLY S/O.THOMAS, PALLIPARAMBAN HOUSE, PERUVANKULANGARA,OLLUR.P.O, THRISSUR DISTRICT, PIN-680 306.** **3 THE NEW INDIA ASSURANCE CO.LTD PERINHCERRY BUILDINGS, ROUND NORTH, THRISSUR, PIN-680001. R3 BY ADV. SRI.A.A.ZIYAD RAHMAN, SC, NEW INDIA ASSURANCE COMPANY LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.2026 of 2010 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.361 of 2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 05.02.2007, while he was riding a motorcycle bearing registration No.KL-8/AE 5570. At the place of accident, a tempo van bearing registration No.KL-8/AC 9271, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, hit the motorcycle. In the accident, the claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tempo van by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,07,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the tempo van remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the tempo van involved in the accident; however, denying negligence alleged M.A.C.A No.2026 of 2010 ## -:3:- against the 2[nd] respondent driver. The insuer contended that the accident occurred due to the negligence on the part of the claimant in riding the motorcycle. Though the insurer raised a contention that the 2[nd] respondent driver was not holding a valid driving licence and badge, the said contention was not pressed into service. 3. Before the Tribunal, Exts.A1 to A9 were marked on the side of the claimant. 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 tempo van by the 2[nd] respondent 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.2,15,600 together with interest at the rate of 7% per annum from the date of petition, i.e., 20.04.2007, till realisation, with proportionate cost, and the 3[rd] respondent insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation M.A.C.A No.2026 of 2010 -:4:- awarded by the Tribunal, 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 3[rd] 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. M.A.C.A No.2026 of 2010 -:5:- 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 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; |Head of claim|Amount<br>claimed|Amount<br>awarded|Basis vital details<br>in a nutshell| |---|---|---|---| |Loss of earning|72,000/-|8,000/-|(2000 x 4)| |Medical and<br>miscellaneous<br>expenses|2,00,000/-|97,200/-|(Ext.A9 series bills<br>for Rs.97,210/)| |Bystander<br>expenses|25,000/-|800/-|(100 x 8)| |Transportation<br>expenses|10,000/-|2,000/-|| |Pain and suffering|50,000/-|20,000/-|| |Loss of amenities|50,000/-|6,000/-|| M.A.C.A No.2026 of 2010 -:6:- |and conveniences<br>etc.|||| |---|---|---|---| |Permanent<br>disability|2,00,000/-|81,600/-|(2000x12x17x20%)| |Total|6,07,000/-|2,15,600/-|Rs.2,15,600/- with<br>interest at the rate<br>of 7% per annum<br>from 20.04.07 till<br>realisation| 11. The accident occurred on 05.02.2007. At the time of accident, the appellant was aged 33 years. The appellant claimed a monthly income of Rs.6,000/- as factory worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. 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. 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 M.A.C.A No.2026 of 2010 -:7:- 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. 13. 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 M.A.C.A No.2026 of 2010 -:8:- 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2007, 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.6,000/- 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. 15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. As per medical records, in the accident, the appellant sustained lacerated wound over the right knee, lacerated wound on the right ankle and foot, loss of skin with soft tissue and loss exposing the ankle joint. Investigation revealed fracture of right femoral condyle and fracture of right talar body. Instability of right ankle was also M.A.C.A No.2026 of 2010 -:9:- noticed during treatment. Exts.A5 and A6 are the photographs showing the physical condition of his right foot, which is deformed with sever swelling. There is also mark of skin grafting on his left thigh. The appellant had undergone inpatient treatment for a period of 8 days. Ext.A9 series of medical bills are for a sum of Rs.97,210/-. 16. The document marked as Ext.A8 is the disability certificate issued by an individual doctor in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 52%. Ext.A8 disability certificate was not proved by examining the doctor concerned. In the absence of proof, the Tribunal fixed 20% permanent whole body disability, for the purpose of awarding compensation under various heads. 17. During the pendency of this appeal, pursuant to the order of this Court dated 29.11.2019, the appellant appeared before the Disability Assessment Board at the Government Medical College Hospital, Thrissur. The disability certificate dated 01.01.2020 issued by the Disability Assessment Board is placed on record along with a covering letter dated 03.01.2020 of the M.A.C.A No.2026 of 2010 -:10:- Superintendent of that Medical College, who is the Chairman of the Disability Assessment Board. In the said disability certificate, the Disability Assessment Board assesed the total whole body permanent disability of the appellant, on account of the injury sustained in the accident, as 48%, using the combination formula. 18. By the order dated 08.01.2020 Registry was directed to serve a copy of the disability certificate to the learned counsel for the appellant and also the learned Sanding Counsel for the 3[rd] respondent insurer. The learned Standing Counsel for the insurer has not raised any objection to the assesment of disability by the Disability Assessment Board. In such circumstances, considering the nature of injuries sustained and the disability noted in the disability certificate dated 01.01.2020, 48% permanant whole body disability assessed by the Disability Assessment Board is taken for the purpose of assessing compensation under various heads. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment M.A.C.A No.2026 of 2010 -:11:- the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.36,000/- (6,000 x 6), resulting in an additional compensation of **Rs.28,000** /- (36,000 – 8,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. The accident is of the year 2007. 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 borne out from medical records, the compensation awarded by the Tribunal under this head is refixed as Rs.2,500/-, resulting an additional compensation of **Rs.500/-** (2,500 – 2,000). 21. Towards bystander expenses the Tribunal awarded a sum of Rs.800/-. The Tribunal awarded no amount towards extra nourishment. The accident is of the year 2007. Considering the nature of injuries sustained and the treatment the appellant had M.A.C.A No.2026 of 2010 -:12:- undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.1,600/- (200 x 8), resulting an additional compensation of **Rs.800/-** (1,600 – 800). The appellant is granted a further sum of **Rs.800/-** (100 x 8) under the head extra nourishment. 22. Towards medical expenses, the Tribunal awarded a sum of Rs.97,200/-, covered by Ext.A9 series of medical bill. 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. 23. 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.25,000/-, resulting an additional compensation of **Rs.5,000/-** (25,000 - 20,000). 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** M.A.C.A No.2026 of 2010 -:13:- ## **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. 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 M.A.C.A No.2026 of 2010 -:14:- said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 33 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 **16** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.81,600/- (2000 x 12 x 17 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 48%, the compensation under the head permanent disability is re-fixed as Rs.5,52,960/- (6,000 x 12 x 16 x 48/100), resulting an additional compensation of **Rs.4,71,360/-** (5,52,960 – 81,600). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and 48% permanent disability assessed by the Disability Assessment Board in its certificate dated 01.01.2020, the compensation M.A.C.A No.2026 of 2010 -:15:- awarded by the Tribunal under this head is re-fixed as Rs.50,000/-, resulting an additional compensation of **Rs. 44,000/-** (50,000 – 6,000). 29. The Tribunal awarded no amount towards disfiguration. Exts.A5 and A6 are the photographs showing the physical condition of the right foot of the appellant, which is deformed with sever swelling. There is also mark of skin grafting on his left thigh. Considering the nature of disfiguration, the appellant is granted a sum of **Rs.20,000/-** as compensation towards disfiguration. 30. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.5,70,460/-** (Rupees Five lakh seventy thousand four hundred and sixty only) [28,000 + 500 + 800 + 800 + 5,000 + 4,71,360 + 44,000 + 20,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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/ M.A.C.A No.2026 of 2010 -:16:- 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 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