Sathyan v. Khalid & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **MACA.No.2548 OF 2010** **AGAINST THE AWARD IN OP(MV) No. 2103/2005 DATED 17-052010 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR** ## **APPELLANT/S:** **SATHYAN, S/O. KOPPUKUTTY PARAPURATH HOUSE, VAKA MATTAM.** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/S:** - **1 KHALID, S/O. MOKARY, AMBALATH HOUSE PERUMANNU ERNALLUR, THRISSUR - 680512.** - **2 T.L.PIOUS S/TO. LONAPPAN H.NO.6009 THALAKKOTTOOR, P.O.KUNAMUCHI, KANDANASSERY,, THRISSUR** - **3 THE NEW INDIA ASSURANCE CO.LTD. ANUGRAHA BUILDING, VADAKKANCHERRY ROAD,, KUNNAMKULAM THRISSUR - 680512.** **R1 BY ADV. SMT.DHANYA P.ASHOKAN R1 BY ADV. SMT.RAJI T.BHASKAR R1 BY ADV. SRI.M.R.VENUGOPAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2548 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2103 of 2005 on the file of the Motor Accidents Claims Tribunal, Vatakara, 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 27.04.2005, while he was travelling on a motorcycle bearing registration No.KL-18/M-6704. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-8/AC3989 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/- under various heads. 2. Before the Tribunal, the respondents 1 and 2 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement -3- MACA. No. 2548 of 2010 admitting the insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.A11 is the disability certificate issued by a doctor assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 offending lorry by its driver. Since insurance coverage of the said 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.77,100/-, together with -4- MACA. No. 2548 of 2010 interest at the rate of 8% per annum from the date of petition, i.e., 20.09.2005 till realisation, with proportionate cost, and 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 3[rd] 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 -5- MACA. No. 2548 of 2010 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 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. -6- MACA. No. 2548 of 2010 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |loss of earning<br>transportation<br>extra nourishment<br>damage to clothing<br>treatment<br>bystander<br>pain and sufferings<br>disability (30000x3%x14)<br>**total**|7500<br>1000<br>1500<br>500<br>34000<br>2000<br>18000<br> <br>12600| |---|---| ||<br>**77,100**| 12. The accident occurred on 27.04.2005. At the time of accident, the appellant was aged 42 years. The appellant claimed a monthly income of Rs.3,500/- 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.2,500/-, for the purpose of assessing compensation under various heads. ## 13. In **Ramachandrappa v. Manager, Royal** -7- MACA. No. 2548 of 2010 ## **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. -8- MACA. No. 2548 of 2010 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 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2005, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income -9- MACA. No. 2548 of 2010 of Rs.3,500/- 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. 16. The document marked as Ext.A2 is the accidentcum-wound certificate and Ext.A6 is the discharge summary. As per medical records, the appellant sustained contusion with haematoma on front of chest right side, contused abrasion on right arm, compound fracture lower part of right leg. He had undergone inpatient treatment for a period of 6 days. Ext.A7 series of medical bills are for a sum of Rs.34,010/-. 17. In Ext.A11 disability certificate issued by a doctor, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 6.15% due to wasting of muscles, multiple scars on the right leg, partial ankylosis of right ankle with limitation of flexion and extension movements to an arc from 90 degree angle to 125 degree plantar flexion, limitation of eversion and inversion of right ankle to an arc from 25 degree inversion and abduction to 10 -10- MACA. No. 2548 of 2010 degree eversion and abduction. The appellant was not chosen to prove Ext.A11 by examining the doctor concerned. The Tribunal accepted the percentage of permanent disability as 3% for the purpose of awarding compensation under various heads, stating that the assessment of disability in Ext.A11 was solely based on physical examination and he was not subjected to any radiological examination. In the absence of any reliable materials to prove permanent disability, the Tribunal cannot be found fault with in taking the percentage of disability as 3%, instead of discarding Ext.A11 in toto. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.7,500/-, at the rate of Rs.2,500/- 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.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.14,000/- (3,500 x 4), resulting an additional -11- MACA. No. 2548 of 2010 ## compensation of **Rs.6,500/-** (14,000 – 7,500) 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. The accident is of the year 2005. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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.3,000/-, resulting an additional compensation of **Rs.2,000/-** (3,000 – 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.2,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 6 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. -12- MACA. No. 2548 of 2010 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 2005, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 – 500). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.34,000/-, covered by Ext.A7 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. 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 the head pain and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.2,000/-** (20,000 – 18,000). 24. In **Sarla Verma v. Delhi Transport Corporation** -13- MACA. No. 2548 of 2010 **[(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 **5** for 66 to 70 years. 25. In **National Insurance Company Ltd. v. Pranay** -14- MACA. No. 2548 of 2010 **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 42 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 **14** applied by the Tribunal is correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.12,600/- (2,500 x 12 x 14 x 3/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 3%, the compensation under the head permanent disability is re-fixed as Rs.17,640/(3,500 x 12 x 14 x 3/100), resulting an additional -15- MACA. No. 2548 of 2010 compensation of **Rs.5,040/-** (17,640 – 12,600). 28. Considering the nature of injuries sustained and 3% permanent disability on account of those injuries, as taken by the Tribunal, this Court deem it appropriate to grant an amount of **Rs.5,000/-** as compensation under the head loss of amenities and a further sum of **Rs.5,000/-** under the head dis-figuration on account of multiple scars on the right leg, as evident from Ext.A11. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.25,790/-** (Rupees twenty five thousand seven hundred and ninety only) [6,500 + 1,000 + 250 + 2,000 + 5,040 + 5,00 + 5,000] 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/claimant towards Balance Court Fee and Legal -16- MACA. No. 2548 of 2010 Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made 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. 30. The appellant to provide his Bank account details 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. All pending interlocutory applications in this appeal are closed. **Sd/ANIL K.NARENDRAN JUDGE** das