SHAJI V.M. v. NEW INDIA ASSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2019 / 26TH AGRAHAYANA, 1941** ## **MACA.No.3287 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.392/2016 DATED 17-10-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/CLAIMANT:** **SHAJI.V.M., AGED 44 YEARS, S/O.RAMANKUTTY, RESIDING AT ANTHOOMANKANDY THAZHEKUNI, SARADHA HOUSE, P.O.NADUVANNUR, KOZHIKODE-673 614.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO. LTD. VADAKARA BRANCH, AL MUBARAK BUILDING, EDODI, VATAKARA-673 101 REPRESENTED BY ITS MANAGER.** **BY ADV. SRI.P.K.BABU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3287 OF 2019** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.392 of 2016 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 21.08.2015, while he was riding a motorcycle bearing registration No.KL-11/S-7318. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-18/F6196, owned by the 1[st] respondent, driven 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 the car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd ] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged **MACA.No.3287 OF 2019** -3- against its driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant. The document marked as Ext.C1 is the disability certificate issued by the Medical Board. Respondents 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 car by the 2[nd] respondent driver. Since insurance coverage of the offending 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.6,40,032/-, which was rounded off to Rs.6,40,100/-, together with interest at the rate of 9% per annum from the date of petition till the date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this **MACA.No.3287 OF 2019** -4- 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 the same should not be a pittance. **MACA.No.3287 OF 2019** -5- 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. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning from<br>21.08.2015 to till this<br>date|1,50,000/-|2,42,330/-|| |2|Transport to hospital|10,000/-|5,000/-|| |3|Extra nourishment &<br>bystander's expenses|35,000/-|8,000/-|| |4|Medical expenses|2,00,000/-|1,57,502/-|| |5|Damage to clothing and<br>articles|3,000/-|1,000/-|| **MACA.No.3287 OF 2019** -6- |6|Pain and suffering|40,000/-|50,000/-|| |---|---|---|---|---| |7|Loss of amenities and<br>enjoyment of life|25,000/-|25,000/-|| |8|Future treatment|1,00,000/-|Nil|| |9|Permanent disability|2,50,000/-|1,15,200/-|| |10|Loss of earning power|2,50,000/-|Nil|| ||Total claim<br>Limited to|10,63,000/-<br>**10,00,000/-**|**6,40,032/-**|**Rounded to**<br>**Rs.6,40,100/-**| 11. The accident occurred on 21.08.2015. At the time of accident, the appellant was a PD Teacher aged 41 years. The appellant claimed a monthly income of Rs.41,500/-, which was proved by producing Ext.A5 salary certificate. 12. The document marked as Ext.A2 is the discharge certificate. As evident from Ext.A2, the appellant sustained comminuted fracture shaft of right femur middle 3[rd] ; Grade I open fracture both bone; and multiple abrasion anterior aspect of middle 3[rd] right leg. He had undergone inpatient treatment for a period of 10 days from 22.08.2015 to 31.08.2015. He had undergone Open Reduction Internal Fixation (ORIF) on right tibia. Interlocking nailing was also done. 13. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at the District Hospital, Vatakara, in which the permanent disability of the appellant on account of the injuries sustained in the accident, is assessed as **MACA.No.3287 OF 2019** -7- 9%. The disabilities noted in Ext.C1 are partial ankylosis right hip with shortening of femur due to comminuted fracture of shaft of femur and fracture of both bones of right leg. The Tribunal noticed that since the appellant is a PD Teacher, the disability noted in Ext.C1 will have no bearing on his earning capacity till retirement and therefore, the disability compensation has to be assessed, taking a notional monthly income after his retirement. However, the Tribunal adopted a multiplier of 14 for awarding disability compensation, instead of applying the multiplier of 9 applicable to the age group 56 to 60 years. 14. In Ext.A5 salary certificate, the loss of salary for the period from 21.08.2015 was calculated as Rs.2,42,330/-. Therefore, towards loss of earning, the Tribunal awarded a sum of Rs.2,42,330/-. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 15. The accident is of the year 2015. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 10 days. Towards transportation to **MACA.No.3287 OF 2019** -8- hospital, the Tribunal awarded a sum of Rs.5,000/-. 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 this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 16. Towards extra nourishment and bystander expenses, the Tribunal awarded a sum of Rs.8,000/-. 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 cannot be said to be on the lower side. 17. 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.1,250/-, resulting an additional compensation of **Rs.250/-** (1,250 - 1,000). 18. Towards medical expenses, the Tribunal awarded a sum of Rs.1,57,502/-, covered by Ext.A4 series of medical bills. **MACA.No.3287 OF 2019** -9- 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. 19. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/- and a further sum of Rs.25,000/- towards loss of amenities. Considering the nature of injuries sustained, which includes partial ankylosis right hip with shortening of femur, the treatment the appellant had undergone, and also the permanent disability of 9% assessed in Ext.C1, 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. 20. The Tribunal awarded no compensation towards future treatment. In the absence of any materials to prove the necessity for future medical treatment for the injuries sustained in the accident or the disability that had arisen out of those injuries, the Tribunal cannot be found fault with in not awarding any compensation under this head. 21. In **Sarla Verma v. Delhi Transport Corporation** **MACA.No.3287 OF 2019** -10- **[(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. 22. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex **MACA.No.3287 OF 2019** -11- 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. 23. In the instant case, as on the date of accident, the appellant was a PD Teacher aged 41 years. The disabilities noted in Ext.C1 will have no bearing on the earning capacity of the appellant till his retirement from service. Therefore, the disability compensation has to be assessed taking a notional monthly income of the appellant, after retirement, and applying the multiplier of 9 applicable to the age group of 56 to 60 years and the percentage of disability as 9%. 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,51,200/- (10,000 x 12 x 14 x 9/100). The monthly income of the appellant, as certified in Ext.A5 salary certificate, is Rs.41,500/-. 50% of the said amount can be taken as his notional monthly income, after retirement. Taking Rs.20,750/- as the notional monthly income, applying the multiplier of 9 and the percentage of disability as 9%, the compensation under this head is re-worked as **MACA.No.3287 OF 2019** -12- Rs.2,01,690/- (20,750 x 12 x 9 x 9/100), resulting an additional compensation of **Rs.50,490/-** (2,01,690 - 1,51,200). 25. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.50,740/-** (Rupees fifty thousand seven hundred and forty only) [250 + 50,490] 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 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 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall submit 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 **MACA.No.3287 OF 2019** -13- 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. Sd/- **ANIL K. NARENDRAN JUDGE** bpr