Sarath.P.S. v. Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** ## **MACA.No.3880 OF 2019** **AGAINST THE AWARD IN OPMV 403/2016 DATED 07-11-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **SARATH.P.S., AGED 24 YEARS, S/O. KUNJUMOL PATHROSE, PALLIPARAMBIL HOUSE, ACHIKKAL, MONIPPALLY.** **BY ADVS. SRI.A.N.SANTHOSH SRI.JOSHY THANNICKAMATTOM** ## **RESPONDENT/2ND RESPONDENT:** **ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, EBENAZER GARDEN, NEAR EDAPPALLY TOLL JUNCTION-682024.** **BY ADV. SRI.R.PADMARAJ BY ADV. SRI.P.J.ANTONY JOSEPH MARIADAS BY ADV. SRI.R.AJITH KUMAR [V.K.EDOM]** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3880 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.403 of 2016 on the file of the Motor Accidents Claims Tribunal, Pala, 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 16.05.2016, while he was riding a motorcycle bearing registration No.KI-67/301. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-35/C1701, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent, which took a U-turn suddenly. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the negligence of the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent driver of the car filed written statement admitting the accident; however, denying the negligence alleged against him. The 1[st] respondent contended that the accident occurred due to the rash and negligent riding of the motorcycle by the **MACA.No.3880 OF 2019** -3- appellant/claimant. It was pointed out that, at the time of accident, the car involved in the accident was having valid insurance with the 2[nd] respondent insurer. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral or documentary 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 car by the 1[st] respondent driver. Since insurance coverage of the offending vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the **MACA.No.3880 OF 2019** -4- Tribunal awarded a total compensation of Rs.4,10,426/-, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost. 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 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 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in **MACA.No.3880 OF 2019** -5- 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 principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; **MACA.No.3880 OF 2019** -6- |SL.<br>NO.|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded<br>(in rupees)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|54000|30000|| |2|Transport to hospital|12000|4800|| |3|Extra nourishment|10000|2000|| |4|Damage to hospital|4000|1000|| |5|Medical and miscellaneous<br>expenses|100000|3426|| |6|Bystander expenses|25000|5000|| |7|Pain and suffering|100000|60000|| |8|Compensation for<br>disability|300000|259200|| |9|Compensation for loss of<br>amenities|100000|45000|| ||**Total**|**Rs.5 lakhs**|**Rs.4,10,426/-**|| 12. The accident occurred on 16.05.2016. At the time of accident, the appellant was aged 20 years. He claimed a monthly income of Rs.10,000/- as Driver. The Tribunal accepted the monthly income, as claimed in the claim petition. 13. The document marked as Ext.A3 is the wound certificate issued from MUM Hospital, Monippally and Ext.A6 is the discharge card issued from the Medical College Hospital, Kottayam. Ext.A7 is another discharge card issued from the Community Health Centre, Koottattukulam and Ext.A8 is the out-patient ticket issued from the Medical College Hospital, Kottayam. Exts.A9 and A9(b) series are the photographs of the appellant showing the disfiguration on account of the **MACA.No.3880 OF 2019** -7- injuries sustained in the accident and also the nature of disability. 14. As per medical records, the appellant sustained open fracture lower end of tibia left and Type III B open middle 1/3[rd] fracture leg left with raw area. Ext.A6 discharge card would show that the appellant was admitted on 16.05.2016 and discharged on 25.05.2016 at the Medical College Hospital, Kottayam. He was treated with primary skin grafting on 16.05.2016. Ext.A8 OP ticket shows that he was continuing treatment at Medical College Hospital, Kottayam and on 07.07.2016, external fixation was removed. Ext.A10 series of medical bills are for a sum of Rs.3,426/-. 15. In Ext.A11 disability certificate issued by an individual doctor, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 16%. The Tribunal did not accept the percentage of permanent disability assessed in Ext.A11. The Tribunal, for the purpose of awarding disability compensation, took the percentage of permanent disability as 12%. 16. The disabilities noted in Ext.A11 disability certificate are; **MACA.No.3880 OF 2019** -8- - “1. Partial ankylosis (L) knee : Motion limited to arc from 180[o] to 190[o] flexion. 2. Partial ankylosis (L) ankle: Motion limited to arc from 90[o] dorsiflexion to 120[o] plantar flexion. 3. He has difficulty in squatting, climbing steps and slopes. 4. He has pain middle 3[rd] of (L) leg and (L) ankle on walking and feeling of unsteadiness on standing for long time. 5. There is hyper and hypo pigmented areas on (L) leg and (L) thigh.” 17. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/-, at the rate of Rs.10,000/- for a period of 3 months. Considering the nature of injuries sustained, 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. Taking the notional monthly income fixed by the Tribunal as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.40,000/- (10,000 x 4), resulting an additional compensation of **Rs.10,000/- (** 40,000 - 30,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a **MACA.No.3880 OF 2019** -9- sum of Rs.4,800/-. 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2016 and the appellant had undergone inpatient treatment for 9 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing (wrongly stated as damage to hospital in the schedule), the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). 21. Towards medical expenses, the Tribunal awarded a **MACA.No.3880 OF 2019** -10- sum of Rs.3,426/-, covered by Ext.A11 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.60,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, and also the nature of disabilities noted in Ext.A11 disability certificate, 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. 23. 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 **MACA.No.3880 OF 2019** -11- 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. ## 24. 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. 25. In the instant case, as on the date of accident, the appellant was aged 20 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 **MACA.No.3880 OF 2019** -12- Tribunal is correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,59,200/- (10,000 x 12 x 18 x 12/100). The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 27. Towards loss of amenities, the Tribunal awarded a sum of Rs.45,000/-. In Ext.A11 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 12%. Considering the nature of injuries sustained and the nature of disabilities noted in Ext.A11 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 28. For disfiguration and loss of marriage prospects, the Tribunal awarded no compensation. As evident from Ext.A11 disability certificate, there is hyper and hypopigmented area on left leg and left thigh. The appellant sustained injuries at an age of 20 years. Therefore, he is granted a sum of **Rs.10,000/-** for disfiguration and a further sum of **MACA.No.3880 OF 2019** -13- **Rs.10,000/-** towards loss of marriage prospects. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.30,500/-** (Rupees thirty thousand five hundred only) [10,000 + 500 + 10,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 the amount to the appellant shall be 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr