SHAKEER S/O.KUNJUMON THIRUNILATH HOUSE vs AWARD IN OP(MV) NO.1064/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941** ## **MACA.No.3095 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1064/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **SHAKEER S/O.KUNJUMON THIRUNILATH HOUSE, KOOTTANADU DESOM P.O., CHALISSERY VILLAGE, OTTAPALAM TALUK.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENTS/RESPONDENTS:** - **1 P.K.RAMACHANDRAN S/O.NARAYANA PANICKER CHANDRALAYAM, KOOTTANADU P.O., PALAKKAD DISTRICT.** - **2 SIVAN S/O.KANAKKARAY KALACHANTHANPARAMBU HOUSE, THEKKE KODANADU, MEZHATHUR, PALAKKAD DISTRICT.** - **3 THE MANAGER UNITED INDIA INSURANCE LTD., BRANCH OFFICE, FAISAL BUILDING, MAIN ROAD, OTTAPALAM, PALAKKAD DISTRICT.** ## **SRI JOHN JOSEPH VETTIKKAD-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3095 of 2009 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1064 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam, 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 23.10.2005, while he was riding a motorcycle bearing registration No.KL-9/K-989. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KRP-4910 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 lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.12,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver of the lorry did not file any written statement. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against the 2[nd] MACA No.3095 of 2009 -:3:- respondent driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant and that, the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A24 were marked on the side of the claimant and Pws.1 and 2 were examined on his side. Ext.X1 is the disability certificate issued by the Medical Board assessing the permanent disability of the claimant, on account of the injuries sustained by him 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 lorry by the 2[nd] responent 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.4,55,060/-, together with interest at the rate of 7% per annum from 07.11.2006 till the date of realisation, with a cost of Rs.5,000/-, and the 3[rd] respondent insurer was directed to satisfy the award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this MACA No.3095 of 2009 -:4:- 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 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 MACA No.3095 of 2009 -:5:- 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 the Tribunal under various heads reads thus; |Heads of claim|Amount<br>awarded|Basic/vital details in a<br>nutshell| |---|---|---| |Permanent disability|77,760/-|(3000 x 12 x 18 x<br>12/100)| |Medical expenses|2,63,350/-|(Ext.A24 medical bills<br>for Rs.2,63,305)| |Bystander expenses|13,950/-|(150 x 93)| |Transportation, extra<br>nourishment<br>and<br>damage to clothing|10,000/-|| |Pain and suffering|40,000/-|| |Loss of amenities|20,000/-|| |Los of Income|30,000/-|(3,000 x 10)| |**Total**|**4,55,060/-**|| 12. The accident occurred on 23.10.2005. At the time of MACA No.3095 of 2009 -:6:- accident, the appellant was aged 25 years. He claimed a monthly income of Rs.10,000/- as photographer and by conducting a studio. The document marked as Ext.A22 is the licence issued by Thrithala Grama Panchayat for conducting the studio. Ext.A23 is the membership card issued by the Kerala Vyapari Vyavasaya Samithi. The appellant was examined as PW1. The Tribunal fixed the monthly income notionally as Rs.3,000/-, 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 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 MACA No.3095 of 2009 -:7:- 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 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 MACA No.3095 of 2009 -:8:- 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, and also the oral testimony of PW1 [who was holding Ext.A22 licence issued by Thrithala Grama Panchayat for conducting the studio and Ext.A23 membership card issued by the Kerala Vyapari Vyavasaya Samithi], this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.6,000/-, for the purpose of assessing compensation under various heads. 16. As per Ext.A6 wound certificate issued from Amala Institute of Medical Science, Thrissur, in the accident, the appellant sustained abraded contusion over face and mandibular areas; and deformity right lower limb. Investigation revealed fracture femur, mandible, pelvis and subdural haemorrhage. Exts.A7 to A10 are discharge summaries. The diagnosis noted is fracture shaft of femur with implant in situ with infection, and un-united fracture tibia with implant in situ with infection. Ext.A11 is a surgical reference card and Ext A12 is another discharge summary. The final diagnosis noted is united fracture of right tibia with chronic osteomyelitis and unstable scar over MACA No.3095 of 2009 -:9:- the right leg. Exts.A15 to A17 are CT scan reports of head. In the column of impression it is noted as small right frontal epidural hematoma; small suspicious left parieto temporal lobe contusion; diffuse cerebral edema; and fracture of right frontal bone without significant displacement. Ext.A18 is the audiological report and Exts.A19 to 21 are the prescriptions. Under different spells, the appellant had undergone inpatient treatment for a period of 93 days. Ext.A8 series of medical bills are for a sum of Rs.2,63,305/-. 17. In Ext.X1 disability certificate, the Medical Board at the District Hospital, Palakkad, assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 12%. The Tribunal accepted the permanent disability assessed by the Medical Board in Ext.X1, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/-, at the rate of Rs.3,000/- for a period of 10 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 10 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the MACA No.3095 of 2009 -:10:- monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.60,000/- (6,000 x 10), resulting an additional compensation of **Rs.30,000/-** (60,000 – 30,000). 19. The Tribunal awarded a consolidated sum of Rs.10,000/- towards transportation to hospital, extra nourishment and damage to clothing. Towards bystander expenses the Tribunal awarded a further sum of Rs.13,950/-. The accident is of the year 2005. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 93 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the appellant is granted a sum of Rs.3,000/- under the head transportation to hospital; Rs.13,950/- (150 x 93) towards bystander expenses; Rs.9,300/(100 x 93) towards extra nourishment; and Rs.750/- towards damage to clothing, resulting an additional compensation of **Rs.3,060/-** [(3,000 + 13,950 + 9,300 + 750) – (10,000 + 13,900)] under the above heads. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.2,63,350/-, covered by Ext.A24 series of medical MACA No.3095 of 2009 -:11:- 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. 21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. 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. Therefore, the appellant is not entitled for any enhancement under this head. 22. 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 MACA No.3095 of 2009 -:12:- 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. 23. 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. 24. In the instant case, as on the date of accident, the appellant was aged 25 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 **18** applied by the Tribunal is correct and proper. 25. Towards compensation for permanent disability, the MACA No.3095 of 2009 -:13:- Tribunal awarded a sum of Rs.77,760/- (3,000 x 12 x 18 x 12/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 12%, the compensation under the head permanent disability is re-fixed as Rs.1,55,520/- (6,000 x 12 x 18 x 12/100), resulting an additional compensation of **Rs.77,760/-** ( 1,55,520 – 77,760). 26. Towards loss of amenities the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of injuries sustained and 12% permanent disability on account of those injuries, as assessed in Ext.X1 disability certificate, the compensation awarded under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs. 1,10,820/-** (Rupees One lakh ten thousand eight hundred and twenty only) [30,000 + 3,060 + 77,760] 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 MACA No.3095 of 2009 -:14:- 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 additional compensation to the appellant/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 appellant shall furnish 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** vps