Sarojini v. Ajith Kumar P.K. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **MACA.No.2944 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1510/2004 DATED 27-11-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT/PETITIONER :** **SAROJINI, W/O.SANKARANARAYANAN, MUNAPPIL HOUSE, KATTOOR P.O., THRISSUR DIST.** **BY ADV. SRI.N.KRISHNANKUTTY PILLAI** ## **RESPONDENTS/DEFENDANTS :** - **1 AJITH KUMAR.P.K, S/O.KUNJAYYAPPAN, PUTHUVEETTIL HOUSE, KARANCHIRA P.O., THRISSUR DIST.** - **2 ANSAR S/O. FAROOQ THARAYIL HOUSE NEDUMPURA DESOM, KATTOOR P.O., THRISSUR DIST.** - **3 THE MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, IRINJALAKUDA,, THRISSUR DIST.** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2944 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1510 of 2004 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 her in a motor accident, which occurred on 21.08.2004, while she was travelling in an autorickshaw bearing registration No.KL-8/A-1978 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the autorickshaw overturned due to rash and negligent driving of the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,20,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed written statement admitting insurance **MACA.No.2944 OF 2009** **3** coverage of the autorickshaw involved in the accident. The insurer contended that the 2[nd] respondent had no valid driving licence and badge at the time of accident. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the autorickshaw was marked as Ext.B1. Both sides have not chosen to adduce any oral 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 autorickshaw by the 2[nd] respondent driver. The Tribunal found that as per Ext.A6 driving licence particulars, the 2[nd] respondent was holding a valid driving licence and badge at the time of accident. Since insurance coverage of the vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.50,400/-, together with interest at the rate of 7% per annum from the date of petition till date realisation, and the insurer was directed to **MACA.No.2944 OF 2009** **4** satisfy the award. 5. Dissatisfied with the quantum of compensation 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is dispensed with. 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 **MACA.No.2944 OF 2009** **5** 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 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 **MACA.No.2944 OF 2009** **6** by the Tribunal under various heads reads thus; |**Head**|**Amount allowed**<br>**(in rupees)**| |---|---| |Medical expenses|17,600/-| |Bystander's expenses|2,000/-| |Transportation expenses|500/-| |Loss of income|4,500/-| |Disability compensation|5,800/-| |Pain and suffering|12,000/-| |Loss of amenities|3,000/-| |Future treatment|5,000/-| |**Total**|**50,400/-**| 11. The accident occurred on 21.08.2004. At the time of accident, the appellant was aged 58 years. The appellant claimed a monthly income of Rs.2,500/- as a tailor. 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.1,500/-, 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 **MACA.No.2944 OF 2009** **7** 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 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** **MACA.No.2944 OF 2009** **8** **(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 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2004, 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.2,500/- claimed by the appellant 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. **MACA.No.2944 OF 2009** **9** 15. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card. As per medical records, the appellant sustained lacerated wound over the back of left ankle 3x1x.5 c.m, pain over the left shoulder and fracture of right scapula and bimalleolar fracture of the left ankle. As per Ext.A4 discharge card, the appellant had undergone inpatient treatment for a period of 20 days and she was diagnosed as a case of compound fracture dislocation of left ankle and fracture of right scapula. 16. In Ext.A5 disability certificate issued from the Co-operative Hospital, Thrissur the disability of the appellant, on account of the injuries sustained in the accident, is certified as 10% permanent limb disability due to severe swelling on the left ankle and also wasting of muscle. There is restriction in the flexion of left ankle joint. Though the said certificate was not proved by examining the doctor, the Tribunal accepted the percentage of permanent limb disability noted in Ext.A5 and converted the same into whole body disability on the usual ratio of 35 to 40% and fixed the percentage of disability as 4%, for the **MACA.No.2944 OF 2009** **10** purpose of awarding compensation under various heads. The disabilities noted in Ext.A5 certificate are moderate restriction of dorsi flexion and plantar flexion of (Lt) ankle joint, moderate swelling and pain around the lateral aspect (Lt) ankle joint and wasting of left leg muscles by 15 cms. Taking into consideration the nature of disabilities noted in Ext.A5, this Court deem it appropriate to take the percentage of whole body disability as 6% for the purpose of assessing compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.4,500/-, at the rate of Rs.1,500/- 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.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.10,000/- (2,500 x 4), resulting an additional compensation of **Rs.5,500/-** (10,000 – 4,500). **MACA.No.2944 OF 2009** **11** 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 20 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 19. Towards bystander expenses, the Tribunal awarded a sum of Rs.2,000/- (100 x 20). Towards extra nourishment, no amount has been awarded by the Tribunal. The accident is of the year 2004 and the appellant had undergone inpatient treatment for 20 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.3,000/- (150 x 20), resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). A further sum of **Rs.2,000/-** (100 x 20) is granted towards extra **MACA.No.2944 OF 2009** **12** nourishment. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.17,600/-, covered by Ext.A7 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. 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. 22. Towards compensation for future treatment, the Tribunal awarded a sum of Rs.5,000/-. In the absence of any reliable materials to prove the requirement of future treatment, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which **MACA.No.2944 OF 2009** **13** requires no enhancement in this appeal. 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 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 **MACA.No.2944 OF 2009** **14** **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 58 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 8 applied by the Tribunal is not correct and and the proper multiplier to be applied is **9** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.5,800/- (1,500 x 12 x 8 x 4/100 = 5,760/- which was rounded off). Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 6%, the compensation under the head permanent disability **MACA.No.2944 OF 2009** ## **15** is re-fixed as Rs.16,200/- (2,500 x 12 x 9 x 6/100), resulting an additional compensation of **Rs.10,400/-** ( 16,200 – 5,800). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 6%. Therefore, the compensation awarded by the Tribunal under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.4,500/-** (7,500 – 3,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.24,900/-** (Rupees Twenty four thousand and nine hundred only) [5,500 + 1,500 + 1,000 + 2,000 + 10,400 + 4,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 252 days in filing this appeal, which was condoned by a separate order of this date, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for **MACA.No.2944 OF 2009** **16** the said amount for the period of delay. 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/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant/claimant 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** AV/21/12