Sathyan v. United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** ## **MACA.No.2523 OF 2008** **AGAINST THE AWARD IN OPMV 3636/2002 DATED 17-11-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** **SATHYAN, S/O. BALAN NAIR, AGED 33 YEARS, VATTAKANDI MOOTHAL HOUSE, CHORODU EAST, POST, BADAGARA VIA, KOZHIKODE, REPRESENTED BY, POWER OF ATTORNEY HOLDER, PADMAJA, W/O. SATHYAN,, AGE 30 YEARS, VATTAKANDI MOOTHAL HOUSE, CHORODU, EAST** **BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT/S:** |**1**|**K.V.PRAKASAN**| |---|---| ||**HOUSE, CHOMBALA POST, AZHIYOOR, KOZHIKODE.**| |**2**|**K.K. SHAJI (DELETED) SO. NARAYANAN AGED 28**| ||**YEARS, KUTHULLAKANDIYIL HOUSE, CHEVAYOOR**| ||**POST,, KOZHIKODE.**| ||**(R2 DELETED FROM PARTY ARRAY AS PER ORDER**| ||**DATED 17-10-2019 IN IA 3058/2013)**| |**3**|**THE UNITED INDIA INSURANCE CO.LTD.**| ||**WHILE ROAD, MADRAS.**| ||**R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 2523 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3636 of 2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 08.11.2001 while he was travelling in a jeep bearing registration No.KL-11/B-9138 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 jeep hit on a stationary vehicle and the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the jeep by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending jeep; however -3- MACA. No. 2523 of 2008 denied the negligence alleged against the 2[nd] respondent driver. It was contended that the lorry was parked in a dangerous situation, without parking lights and therefore, the accident occurred due the negligence of the driver of the lorry. 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 A5 series were marked on the side of the appellant and he was examined as PW1. The disability certificate issued by the Medical Board was marked as Ext.C1. The respondents 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 offending jeep by the 2[nd] respondent driver. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.64,626/-, -4- MACA. No. 2523 of 2008 and the insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum from 19.12.2002. 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 compensation for loss of limbs or life can hardly be weighed in -5- MACA. No. 2523 of 2008 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 -6- MACA. No. 2523 of 2008 ## the Tribunal under various heads reads thus; |Medical Bills|:|Rs.10,726/-| |---|---|---| |Incidental charges|:|Rs.4,000/-| |Pain and suffering|:|Rs.15,000/-| |Disability|:|Rs.26,900/-| |Loss of income(notional)|:|Rs.4,000/-| |Transportation|:|Rs.2,000/-| |**Total**|:|**Rs.64,626/-**| 12. The accident occurred on 08.11.2001. At the time of accident, the appellant was aged 27 years. The appellant claimed a monthly income of Rs.4,000/- as a hotel worker. No materials were produced before the Tribunal to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the annual income notionally as Rs.17,000/-, for the purpose of assessing compensation under various heads. 13. 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 -7- MACA. No. 2523 of 2008 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. 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 -8- MACA. No. 2523 of 2008 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. -9- MACA. No. 2523 of 2008 16. The document marked as Ext.A2 is the wound certificate and Exts.A3 and A4 are discharge summaries. Ext.A5 series of medical bills are for a sum of Rs.10,726/-. As per Ext.A2, the appellant had pain on hip joint, contusion on hip joints, and small cut injury on the left fore-arm. He was referred for expert Ortho Management. Ext.A3 is the discharge summary issued from the Tellicherry Co-operative Hospital. Ext.A4 series are reference cards issued by the Medical Collage Hospital. As per medical records, the appellant had dislocation and fracture of lateral condyle of radius. The discharge card issued from Asoka Hospital would show that he had urinary tract infection. The Tribunal noticed that there is no evidence to connect this injury with the fracture sustained in the accident. 17. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 10%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation -10- MACA. No. 2523 of 2008 under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period 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 3,000/-, the compensation under the head loss of earning is re-fixed as Rs.12,000/- (3,000 x 4), resulting an additional compensation of **Rs.8,000/-** (12,800 – 4,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 25 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the different spells of hospitalisation, the compensation under this head is re-fixed as Rs. 3,000/-, resulting an additional compensation of **Rs** . **1,000** /- (3,000 - 2,000). 20. Towards incidental charges, the Tribunal awarded a -11- MACA. No. 2523 of 2008 sum of Rs. 4,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 25 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted Rs.3,750/- (150 x 25); as bystander expenses; and a further sum of Rs.2,500/- (100 x 25) under the head extra nourishment. After deducting Rs.4,000/awarded by the Tribunal under the head incidental charges, the appellant will be entitled for payment of an additional compensation of **Rs** . **2,250/-** (3,750 + 2,500 – 4,000). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.10,726/-, covered by Ext.A5 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.15,000/-. Considering the nature of injuries sustained and the treatment the appellant -12- MACA. No. 2523 of 2008 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. 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 -13- MACA. No. 2523 of 2008 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 27 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 correct and proper. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.28,900/-. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiple of 17 applicable to the age group of the -14- MACA. No. 2523 of 2008 appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is refixed as Rs.61,200/- (3,000 x 12 x 17 x 10/100), resulting an additional compensation of **Rs.32,300/-** (61,200 – 28,900). 27. The Tribunal awarded no compensation under the head loss of amenities. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.C1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.10,000/-** as compensation under the head loss of amenities. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.53,550/-** (Rupees fifty three thousand five hundred and fifty only) [8,000 + 1,000 + 2,250 + 32,300 + 10,000] 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 -15- MACA. No. 2523 of 2008 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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** das