Sebastian v United India Insurance Co. Ltd. / United India Insurance Co. Ltd. v Sebastian (MACA Nos.296 & 1191 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** **MACA.No.296 OF 2013** **AGAINST THE AWARD IN OP(MV)No.1035/2005 DATED 08-11-2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/RESPONDENT NO.3:** **THE UNITED INDIA INSURANCE CO.LTD REGIONAL OFFICE, ERNAKULAM, REP. BY ITS REGIONAL MANAGER.** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** ## **RESPONDENT/CLAIMANT:** **SEBASTIAN AGED 52 YEARS, S/O. FRANCIS, RESIDING AT LOVE DALE, HARITHA NAGAR, OLLUKKARA KALATHODE, THRISSUR DISTRICT.** **R1 BY ADV. SRI.A.R.NIMOD R1 BY ADV. SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, ALONG WITH MACA No.1191/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.296 & 1191 of 2013 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** **MACA.No.1191 OF 2013** **AGAINST THE AWARD IN OP(MV)No.1035/2005 DATED 08-11-2012 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SEBASTIAN S/O. FRANCIS, RESIDING AT LOVE DALE, HARITHA NAGAR, OLLUKKARA, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** **1 P.MOIDEENKUTY S/O. SAIDALAVI HAJEE, RESIDING AT PALARA HOUSE, P.O., VALLANCHERRY, MALAPPURAM DISTRICT-676552. 2 UNNI NAIR S/O. SANKARAN NAIR, RESIDING AT KUNNAKAVIL HOUSE, VILATHUR, THIRUVENGAPPURAM, PALAKKAD DISTRICT-679304. 3 THE UNITED INSURANCE COMPANY LTD. CITY BRANCH-1, RAMEEZ ARCADE, C.H.FLY OVER JUNCTION, CHEROOTY ROAD, CALICUT, PIN-673001.** **R1, R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R1 BY ADV. SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, ALONG WITH MACA No.296/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.296 & 1191 of 2013 -:3:- ## **JUDGMENT** The appellant in M.A.C.A.No.1191 of 2013 is the claimant in O.P.(MV)No.1035 of 2005 on the file of the Motor Accidents Claims Tribunal, Thrissur and the appellant M.A.C.A.No.296 of 2013 is the 3[rd] respondent insurer in that claim petition. The claimant is before this Court, dissatisfied with the quantum of compensation awarded by the Tribunal under the heads loss of earning, permanent disability and loss of amenities. The insurer is before this Court, contending that the assessment of compensation by the Tribunal under the head permanent disability is per se illegal. The parties are referred to in this judgment, as they appear in M.A.C.A. No.1191 of 2013. 2. The appellant in M.A.C.A.No.1191 of 2013 is the claimant in O.P.(MV)No.1035 of 2005 on the file of the Motor Accidents Claims Tribunal, Thrissur 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 11.02.2005, while he was travelling in a car bearing registration No.KL-8/V-221. At the place of accident, the car was hit by a lorry bearing registration MACA Nos.296 & 1191 of 2013 -:4:- No.KL-13/B-5722 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the appellant in M.A.C.A.No.296 of 2013. In the accident, he sustained injuries. Alleging that the accident occurred due to rash and negligent driving of the lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.6,06,000/- under various heads. 3. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the lorry by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.3,83,200/- together with interest at the rate of 8% per annum from the date of petition, i.e., 13.05.2005, till realisation, with proportionate cost and the 3[rd] respondent insurer was directed to satisfy the award. 4. The award passed by the Tribunal is under challenge in these appeals, to the extend indicated hereinbefore. 5. Heard the learned counsel for the appellant/ MACA Nos.296 & 1191 of 2013 -:5:- claimant and also the learned counsel for the 3[rd] respondent insurer (appellant in M.A.C.A.No.296 of 2013). 6. The issue that arises for consideration in these appeals is as to whether the compensation awarded by the Tribunal under the heads loss of earning, permanent disability and loss of amenities represents just and reasonable compensation. 7. 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 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. ## 8. In **National Insurance Company Ltd. v. Pranay** MACA Nos.296 & 1191 of 2013 -:6:- **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. 9. The compensation awarded by the Tribunal under ## various heads reads thus: |Sl.<br>No.|Head of Claim|Amount<br>Claimed<br>(in Rs.)|Amount<br>Awarded<br>(in Rs.)|Basic<br>vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earning (total)|1,32,000|30000|| |2|Loss of earning<br>(partial)|||| |3|Medical expenses|1,50,000|1,07,360|| |4|Future treatment|||| |5|Bystander expenses|20,000|7,200|| |6|Transportation<br>expenses|6,000|3,000|| |7|Extra nourishment|6,000||| |8|Damages to clothing|2,000||| MACA Nos.296 & 1191 of 2013 -:7:- |9|Pain and suffering|50,000|18,000|| |---|---|---|---|---| |10|Disability, etc<br>Loss of amenities<br>Loss of earning power|1,00,000<br>40,000<br>1,00,000|2,01,600<br>16,000|(10,000 x 12 x<br>10 x 15%) +<br>(4000 x 12 x 3<br>x 15%)| ||Total<br>Rounded off to|6,06,000|3,83,160<br>3,83,200|| 10. The accident occurred on 11.02.2005. At the time of accident, the claimant was aged 45 years, who was working as Lecturer in St.Thomas College, Thrissur, drawing a net salary of Rs.24,483/- (Basic Pay Rs.14,940/-). The document marked as Ext.A8 is the pay certificate and Ext.A7 is the leave certificate. The attendance and pay details of the claimant for the relevant period, which was marked as Ext.X1, were called for to ascertain loss of salary for the relevant period, on account of the injuries sustained in the accident. 11. The learned counsel for the appellant/claimant, after referring to Exts.X1 and X1(a) attendance and pay details of the claimant, would point out that the claimant availed leave on loss of pay, half pay and leave without allowances for a total period of 106 days and the total monetary loss comes to Rs.1,06,474. However, the Tribunal awarded only a sum of Rs.30,000/- under MACA Nos.296 & 1191 of 2013 -:8:- the head loss of earning. 12. The learned Standing Counsel for the 3[rd] respondent insurer, after verifying Exts.X1 and X1(a) would fairly submit that, the total monetary loss to the claimant for the period of leave would come to Rs.1,06,474, as against Rs.30,000/awarded by the Tribunal. In such circumstances, the compensation awarded by the Tribunal under the head loss of earning is re-fixed as Rs.1,06,474/-, resulting in an additional compensation of **Rs.76,474/-** (1,06,474 – 30,000). 13. Now the remaining issue to be considered is whether the compensation awarded by the Tribunal under the heads permanent disability and loss of amenities represents just and reasonable compensation. 14. The document marked as Ext.A2 is the wound certificate and Ext.A5 series are discharge summaries. As per medical records, in the accident, the claimant sustained posterior dislocation (R) hip with posterior wall fracture of acetabulum; patellar tendon rupture with sciatic nerve injury with foot drop (R) foot; laceration tongue; and abrasion (R) knee. Skeletal traction, open acetabular reconstruction and patellar tendon MACA Nos.296 & 1191 of 2013 -:9:- repair were done. The appellant had undergone inpatient treatment for a period of 36 days. 15. The document marked as Ext.A9 is the disability certificate issued by an individual doctor, who was examined as PW1. The nature of disabilities noted in Ext.A9 are weakness (R) foot; pain and stiffness (R) knee; pain and stiffness (R) ankle and hip; difficulty in climbing up and down the stairs; and inability to run. Clinical and radiological examination revealed malunited wall of acetabulam with reduced dislocation (R) hip; stiffness (R) hip; secondary osteoarthritis (R) hip; stiffness (R) knee. He has partially recovered sciatic nerve injury. Common peroneal nerve, which is the terminal branch of the sciatic nerve, was only partially recovered. He has only grade two power in dorsflexion (R) foot. Taking into consideration the aforesaid disabilities, the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed in Ext.A9 as 20%, as per McBride Scale. The Tribunal took the percentage of disability as 15%. Having considered the nature of injuries sustained and the disabilities noted in Ext.A9 disability certificate and also the evidence tendered by PW1, this Court MACA Nos.296 & 1191 of 2013 -:10:- deem it appropriate to take the percentage of permanent disability as 20%, as assessed in Ext.A9, for the purpose of granting compensation under the head permanent disability and loss of amenities. 16. 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, MACA Nos.296 & 1191 of 2013 -:11:- 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. 17. 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. 18. In the instant case, at the time of accident, the appellant was aged 45 years, who was working as a Lecturer in St.Thomas College, Thrissur, drawing a net salary of Rs.24,483/(Basic Pay Rs.14,940/-). The permanent disability of 20% on account of the injuries sustained in the accident, will have no bearing on his earning capacity till his retirement from service on attaining the age of superannuation. The appellant has no case that the permanent disability on account of the injuries sustained in the accident had resulted in any reduction of his salary as Lecturer in St.Thomas College. The appellant has also no case that the said permanent disability will have an adverse impact on his promotion prospects, in any manner. Therefore, as rightly MACA Nos.296 & 1191 of 2013 -:12:- contended by the 3[rd] respondent insurer (appellant in M.A.C.A.No.296 of 2013), the Tribunal went wrong in awarding disability compensation for the period of service of the appellant, applying a split multiplier of 10. However the permanent disability on account of the injuries sustained in the accident will certainly have an adverse impact on the earning power of the appellant after his retirement from service. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, taking Rs.12,241/- (i.e. 50% of his monthly income of Rs.24,483/-) as his notional monthly income after his retirement from service on superannuation; and applying the multiplier of **9** applicable to the age group of 56 - 60 years. 19. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,01,600/- [(10,000 x 12 x 10 x 15%) + (4000 x 12 x 3 x 15%)]. Since the monthly income of the appellant after his retirement is fixed notionally as Rs.12,241/-, applying the multiplier of 9 applicable to the age group of 56 - 60 years and the percentage of permanent disability as 20%, the compensation under the head permanent disability is re-fixed as Rs.2,64,405/- (12,241 x 12 x 9 x MACA Nos.296 & 1191 of 2013 -:13:- 20/100), resulting an additional compensation of **Rs.62,805/-** (2,64,405 – 2,01,600). 20. Towards loss of amenities the Tribunal awarded a sum of Rs.16,000/-. Considering the nature of injuries sustained and 20% permanent disability on account of those injuries, as assessed in Ext.A9 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.4,000/-** (20,000 – 16,000). 21. In the result, the appellant in M.A.C.A.No.1191 of 2013, who is the claimant in O.P.(MV)No.1035 of 2005, will be entitled for payment of an additional compensation of **Rs.1,43,279/-** (Rupees one lakh forty three thousand two hundred and seventy nine only) [76,474 + 62,805 + 4,000], which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 3[rd] respondent insurer (appellant in M.A.C.A.No.296 of 2013) 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 MACA Nos.296 & 1191 of 2013 -:14:- any, of the claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the claimant shall be made taking note of the law on the point and 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. The claimant shall provide his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) 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. The appeals are disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** vps