Sasidharan v. Somanna and United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **MACA.No.581 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.894/2004 DATED 01-04-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT :** **SASIDHARAN, S/O.M.NARAYANAN AGED 33 YEARS AT ADHIYARATH HOUSE, KALLOOR P.O., MANKARA VILLAGE, PALAKKAD.** **BY ADVS. SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD** ## **RESPONDENTS:** **1 SOMANNA, RESIDING AT BELEKERI,ANKOLA** - **2 UNITED INDIA INSURANCE COMPANY LIMITED RADHA GOVINDA COMPLEX, KAIKINI ROAD, KARWAR.** ## **R1 BY ADV. SRI.S.ARUN RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.581 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.894 of 2004 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 29.08.2001, while he was driving a truck bearing registration No.KL-7/M-5607. At the place of accident, the said truck was hit by another truck bearing registration No.KA-30/2617 owned and driven by the 1[st] respondent and insured with 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 truck by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,12,500/-, under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. The 2[nd] respondent insurer filed a written statement admitting the insurance coverage of the vehicle. The insurer contended that the accident **MACA.No.581 OF 2010** **3** happened due to the rash and negligent driving of the truck by the appellant/claimant. It was also contended that insured vehicle was not covered by a valid permit, at the time of accident, and the 1[st] respondent driver was not holding valid and effective driving licence. The 2[nd] respondent contended that the compensation amount claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A14 were marked on the side of the appellant/claimant. 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 truck by the 1[st] respondent driver. As per Ext.A3 charge sheet, the 1[st] respondent was not charge sheeted for driving the vehicle without valid driving licence. Since insurance coverage of the offending vehicle is 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.51,598/- with interest at the rate of **MACA.No.581 OF 2010** **4** 7.5% per annum from the date of petition, i.e., 12.10.2004 till realisation, with a cost of Rs.400/- 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. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the offending vehicle is not in dispute, service of notice on the 1[st] 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 **MACA.No.581 OF 2010** **5** 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 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 **MACA.No.581 OF 2010** **6** ## 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|Amount allowed| |---|---| |Loss of earnings|Rs.1,500/-| |Transportation|Rs.5,000/-| |Extra nourishment|Rs.1,000/-| |Damage to clothing|Rs.500/-| |Medical expenses|Rs.7,218/-| |Bystander expenses|Rs.2,550/-| |Pain and sufferings|Rs.14,000/-| |Permanent disability|Rs.16,830/-| |Loss of amenities|Rs.3,000/-| |**Total**|**Rs.51,598/-**| ## 11. The accident occurred on 29.08.2001. At the time of accident, the appellant was aged 30 years. He claimed a monthly income of Rs.3,500/-. The driving licence of the appellant was marked as Ext.A9. No documents were produced before the Tribunal to prove the monthly income of the appellant. He has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,750/-, for the purpose of assessing compensation under various heads. 12. In **Ramachandrappa v. Manager, Royal** **MACA.No.581 OF 2010** **7** ## **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 point of time. 13. In **Syed Sadiq v. Divisional Manager, United** **MACA.No.581 OF 2010** **8** **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 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. Admittedly, the appellant was driving a heavy goods vehicle at the time of accident. The document marked as Ext.A9 is the driving licence of the appellant. Therefore, taking note of the fixation of notional income by the Apex Court in the decisions referred to supra, the monthly income of the appellant can be notionally re-fixed **MACA.No.581 OF 2010** **9** as Rs.3,500/-, for the purpose of assessing compensation under various heads. 15. Ext.A5 is the wound certificate. Ext.A6 is the discharge summary and Ext.A7 is the treatment certificate. As per medical records, in the accident the appellant had sustained multiple abrasions and lacerated wounds on left forearm, right thigh, right foot and left foot; fracture of the right cuboid and navicular bone and 3[rd] meta tarsal bones with subluxation of proximal interphalangeal joint of 2[nd] toe; small (1x1x0.5cm) laceration over the lateral aspect of left side of chest; 0.5x0.5x0.5cms laceration over the bridge of the nose; 3x3x0.2cm laceration over right parietal region; 5x1x0.3cm laceration over left frontoparietal; and 4x2cm abrasion over left frontal region. The appellant had undergone inpatient treatment for a period of 17 days. 16. In Ext.A8 disability certificate, the percentage of permanent disability of the appellant, on account of the injuries sustained in the accident is certified as 10%. The doctor who issued Ext.A8 disability certificate was not examined. Therefore, the Tribunal took the percentage of **MACA.No.581 OF 2010** **10** disability as 3% on a finding that the disability assessed by the Doctor is slightly excessive considering the difficulties caused to the appellant on account of the injuries. As per Ext.A8, the appellant has got difficulty in climbing stairs and squatting. He has got limitation of movements of right knee. Considering the nature of disabilities noted by the Tribunal in paragraph 16 of the award, this Court deem it appropriate to take the percentage of disability as 6% for the purpose of assessing compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.1,500/. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to re-fix the compensation under this head as Rs.10,500/-, at the rate of Rs.3,500 for a period of 3 months, resulting an additional compensation of **Rs.9,000/-** (10,500 - 1,500). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. The compensation awarded **MACA.No.581 OF 2010** **11** by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained by the appellant and also the treatment he had undergone, compensation under this head is re-fixed as Rs.1,700/- (100 x 17), resulting an additional compensation of **Rs.700/-** (1,700 - 1,000). 20. Towards, bystander's expenses, the Tribunal awarded a sum of Rs.2,550/-. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.7,218/-, covered by Ext.A12 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.581 OF 2010** **12** 22. Towards pain and sufferings, the Tribunal awarded a sum of Rs.14,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.1,000/-** (15,000 - 14,000). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained by the appellant and the permanent disability that had arisen out of those injuries, taken as 6% in this appeal, the compensation under this head is re-fixed as Rs.7,500/-, resulting an additional compensation of **Rs.4,500/-** (7,500 - 3,000). 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 v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India Assurance** **MACA.No.581 OF 2010** **13** **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 said judgment. **MACA.No.581 OF 2010** **14** 26. In the instant case, as on the date of accident, the appellant was aged 30 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** adopted by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.16,830/- (2,750 x 12 x 17 x 3/100). Since the monthly income of the appellant is refixed notionally as Rs.3,500/-, applying the permanent disability as 6%, the compensation under this head is refixed as Rs.42,480/- (3,500 x 12 x 17 x 6/100), resulting an additional compensation of **Rs.26,010/-** (42,480 - 16,830). 28. In the result, the appellant will be entitled for an additional compensation of **Rs.41,210/-** (Rupees Forty one thousand two hundred and ten only) [9,000 + 700 + 1,000 + 4,500 + 26,010] 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 **MACA.No.581 OF 2010** **15** 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/4/11