Shaiju v. Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **MACA.No.3832 OF 2019** **AGAINST THE AWARD IN O.P.(MV) NO.1684/2015 DATED 29-03-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT:** **SHAIJU, AGED 43 YEARS, S/O VAREETH, VARELAN HOUSE, MATTOOR P.O.KALADY.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LTD, 1ST FLOOR, JYOTHI SUPER BAZAR, THODUPUZHA-685 584.** ## **SMT K.S.SANTHI-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3832 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P.(MV) No.1684 of 2015 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, a claim petition filed under Section 166 of the Motor Vehicles Act claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 21.11.2015, while he was riding a motorcycle bearing registration No.KL-07/AV4162. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-44/A-5737 owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal, and insured with the respondent herein. In the accident, the appellant and also the pillion rider (claimant in O.P. (MV) No.1687 of 2017) sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 2[nd] respondent driver, a claim petition was filed before the Tribunal claiming a total compensation of Rs.57,00,000/under various heads, which was limited to Rs.10,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the owner and driver of the car remained absent and they were set ex-parte. The respondent **MACA.No.3832 OF 2019** -3- insurer filed written statement admitting insurance coverage of the said vehicle; however, denying negligence on the part of the driver. The insurer contended that the accident occurred due to the negligence of the appellant, who was riding the motorcycle. 3. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A8 were marked on the side of the appellant/claimant. A copy of the insurance policy was marked as Ext.B1 on the side of the respondents. The disability certificate issued by the Medical Board at Government Medical College Hospital, Thrissur was marked as Ext.C1. 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 car by the 2[nd] respondent driver. Since the 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.5,97,551/-, together with interest at the rate of 8% per annum from the date of petition till realisation, with proportionate cost and the 3[rd] respondent insurer was directed to satisfy the award. **MACA.No.3832 OF 2019** -4- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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 respondent insurer. 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 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 **MACA.No.3832 OF 2019** -5- 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. The compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No<br>.|Head of Claim<br>Compensation for|Amount<br>claimed<br>(in Rupees)|Amount<br>awarded|Basis-vital details<br>in a nut shell| |---|---|---|---|---| |1|Loss of earnings|10,00,000|56,000|Rs.8,000 x 7 months| |2|Partial loss of<br>earnings|3,00,000|NIL|| |3|Transport to Hospital|1,00,000|6,000|2 IP + reviews| |4|Extra nourishment|5,00,000|5,000|| **MACA.No.3832 OF 2019** -6- |||||| |---|---|---|---|---| |5|Medical expenses|5,00,000|1,38,551|Actual medical bills| |6|Pain & suffering|5,00,000|90,000|| |7|Loss of amenities<br>etc.|5,00,000|80,000|| |8|Permanent disability|5,00,000|2,16,800|Rs.8000x12x15x15%| |9|Attendance charge|5,00,000|5,000|| |10|Damage to clothes<br>etc|1,00,000|1,000|| |11|Future prospects|5,00,000|NIL|| |12|Disfiguration etc|5,00,000|NIL|| |13|Loss of earning<br>power|2,00,000|NIL|| |Total||57,00,000/-<br>limited to<br>10,00,000/-|5,97,551/-|| 11. The accident occurred on 21.11.2015. At the time of accident, the appellant was aged 38 years and he claimed a monthly income of Rs.30,000/- as a manual labourer. The appellant has also not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally as Rs.8,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a **MACA.No.3832 OF 2019** -7- 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 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, **MACA.No.3832 OF 2019** -8- 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. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2015, 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.10,000/-, for the purpose of assessing compensation under various heads. 15. Ext.A9 wound certificate would show that the appellant was admitted in Little Flower Hospital, Angamaly on 21.11.2015 and discharged on 01.12.2015. Ext.A6 is the **MACA.No.3832 OF 2019** -9- discharge summary. The injury sustained in the accident, as borne out from medical records is, severe head injury (diffuse axonal injury), resulting systemic hypertension. Ext.A7 series of medical bills are for a sum of Rs.1,38,551/- and Ext.A8 ambulance bill is for a sum of Rs.4,900/-. 16. Ext.C1 is the disability certificate issued by the Medical Board at the Medical College Hospital, Thrissur, wherein the permanent whole body disability of the appellant on account of the injuries sustained in the accident is assessed as 15%. The Tribunal accepted the percentage of disability assessed in Ext.C1 for the purpose of awarding compensation under the head permanent disability. 17. Towards loss of earnings, the Tribunal awarded a sum of Rs.56,000/- (8,000 x 7). Considering the nature of injuries sustained and the treatment she had undergone, the period of 7 months fixed by the Tribunal for loss of earning requires no enhancement in this appeal. Since the monthly income of the appellant is re-fixed notionally as Rs.10,000/-, the compensation under the head loss of earning is re-fixed as Rs.70,000/- (10,000 x 7), resulting an additional compensation **MACA.No.3832 OF 2019** -10- ## of **Rs.14,000/-** (70,000 - 56,000). 18. Towards transport to hospital, the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records and Ext.A8 ambulance bill, the compensation awarded under this head cannot be said to be on the lower side. 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.5,000/-. Towards attendant charges, the Tribunal awarded a further sum of Rs.5,000/-. The accident is of the year 2015 and the appellant had undergone inpatient treatment for 10 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. 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2015, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 21. Towards medical expenses, the Tribunal awarded a **MACA.No.3832 OF 2019** -11- sum of Rs.1,38,551/-, 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. 22. Towards pain and suffering and loss of amenities, the Tribunal awarded a sum of Rs.90,000/- and Rs.80,000/respectively. The appellant was a manual labourer, at the time of accident. As evident from Exts.A5 and A6, in the accident, the appellant sustained severe head injury (diffuse axonal injury), which had resulted in 15% permanent whole body on account of neurological disorders. Considering the nature of injuries sustained, the treatment the appellant had undergone and the neurological disorder, as borne out from medical records, the compensation awarded by the Tribunal under these heads represent just and reasonable compensation. Therefore, the appellant is not entitled for any compensation 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** **MACA.No.3832 OF 2019** -12- **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. 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 **MACA.No.3832 OF 2019** -13- of the said judgment. 25. In the instant case, as on the date of accident, the appellant was aged 38 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 **15** applied by the Tribunal is correct and proper. 26. Towards permanent disability, the Tribunal awarded Rs.2,16,000/- (8,000 x 12 x 15 x 15/100). Since the monthly income of the appellant is re-fixed as Rs.10,000/-, the compensation under this head is re-fixed as Rs.2,70,000/(10,000 x 12 x 15 x 15/100), resulting an additional compensation of **Rs.53,200/-** (2,70,000 - 2,16,800). 27. In the result, the appellant is entitled for payment of an additional compensation of **Rs.67,700/-** (Rupees sixty seven thousand seven hundred only) [14,000 + 53,200 + 500] in this appeal, in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 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 **MACA.No.3832 OF 2019** -14- 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** bpr