Shanmughan v. Sunil and HDFC ERGO General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941** ## **MACA.No.776 OF 2016** **AGAINST THE AWARD IN OP(MV)NO. 875/2010 DATED 16-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT:** ## **SHANMUGHAN** **AGED 56 YEARS, S/O. VELAN, OTTAPPARAMBU, PERUVEMBA P.O., PALAKKAD DISTRICT.** **BY ADVS. SRI.BINOY VASUDEVAN SMT.K.J.ANITHA** ## **RESPONDENTS:** - **1 SUNIL** **AGED 32 YEARS, S/O. CHAMIYAR, ENTHAKKADU VEEDU, PERUVEMBA P.O., PALAKKAD DISTRICT.** - **2 HDFC ERGO GENERAL INSURANCE CO. LTD. SUN LINKS, SECOND FLOOR,ATHULIYA BUILDING, CHUNNAMBUTHARA, PALAKKAD.** **R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY R1-2 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.776 OF 2016** **2** ## **JUDGMENT** The appellant is the claimant in OP(MV) No.875 of 2010 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 06.05.2010, while he was riding a motorcycle bearing registration No.KL09/K-3649. At the place of accident, the motorcycle was hit by an autorikshaw bearing registration No.KL-09/V-7772, owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. As a result of the accident, the appellant and also the pillion rider sustained injuries. Alleging that the accident occurred due to the rash an negligent driving of the autorikshaw by the 1[st] respondent owner-cum-driver, claim petition was filed before the Tribunal claiming a total compensation of 2,42,000/under various heads, which was limited to Rs.1,50,000/- for the purpose of payment of court fee. The pillion rider has also filed OP(MV) No.873 of 2010. 2. Before the Tribunal, the 1[st] respondent owner-cumdriver of the offending vehicle remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement **MACA.No.776 OF 2016** **3** admitting insurance coverage of the offending vehicle; however, denying the negligence alleged against the 1[st] respondent owner-cum-driver. The 2[nd] respondent contended that the accident occurred due to the rash and negligent driving of the appellant/claimant, who is the rider of the motorcycle. 3. Before the Tribunal, Exts.A1 to A24 series were marked on the side of the claimants and Exts.X1 and X2 Medical certificates were marked. Both sides 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 autorikshaw by the 1[st] respondent owner-cum-driver and in such circumstances, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.82,850/- and directed the 2[nd] respondent-insurer to deposit the said amount by way of cheque/DD favouring the appellant for direct payment to him together with interest at the rate of 9% per annum from the date of petition till realisation together with proportionate cost. The insurer was directed to satisfy the award within one month **MACA.No.776 OF 2016** **4** from the date of award. 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 and also the learned counsel for the 2[nd] respondent insurer. Since the insurance coverage of the offending vehicle is admitted, service of notice on the 1[st] respondent is dispensed with. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of 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 **MACA.No.776 OF 2016** **5** compensation must be 'just' and it cannot be a bonanza; not a source of profit; but 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. In the instant case, the compensation awarded by the tribunal under various heads reads thus: |Sl.<br>No.|Head<br>under<br>which<br>compensation is claimed|Amount<br>claimed (in<br>Rupees)|Amount<br>allowed<br>(in<br>Rupees)|Basis on which<br>allowed/<br>disallowed with<br>reasons in a nut-<br>shell| |---|---|---|---|---| |1|Loss of earnings|35,000||| |2|Partial loss of earnings|15,000||| |3|Medical expenses|40,000|23,000|Ext.A19 series| |4|Bystander expenses|10,000|600|| |5|Damage to clothing etc.|20,000|250|| **MACA.No.776 OF 2016** **6** |6|Transportation|10,000|1,500|| |---|---|---|---|---| |7|Extra-nourishment|10,000||| |8|Pain and suffering|25,000|12,500|| |9|Loss of love and affection|||| |10|Loss of consortium|||| |11|Loss of estate|||| |12|Loss of dependency/<br>economic benefits|||| |13|Loss of amenities and<br>conveniences of life|25,000|45,000|| |14|Loss of earning power|||| |15|Funeral Expenses|||| |16|Disfigurement/deformity|10,000||| |17|Any other head|||| ||Total|1,50,000|82,850|9% p.a. interest<br>from date of<br>petition| 11. At the time of accident, the appellant was aged 48 years. He claimed a monthly income of Rs.13,000/- as a Peon in Canara Bank, Kozhinjampara Branch. In order to prove monthly income, the appellant produced Exts.A23 and 23A salary slips for the month of May, 2010 and June, 2010. The Tribunal noticed that the said salary slips would not indicate any loss of salary after the accident. Ext.X2 is the disability certificate issued by the Medical Board in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is certified as 9%. The Tribunal noticed that, in Ext.X2 there is partial anglosis of metacarpo-phalangeal joint middle **MACA.No.776 OF 2016** **7** finger, right hand causing restriction and decreased limb strength. It is a functional disability for the appellant, who is a permanent employee of a Bank. As per Ext.A16 discharge certificate and Ext.A2 wound certificate, the appellant sustained fracture of both bones of right forearm, fracture of third metacarpal middle finger right and was hospitalised for 6 days. Ext.A19 series of medical bills are for a sum of Rs. 22,977/- and Ext.A24 series trip sheets are for a sum of Rs.4,200/- towards transportation expenses. 12. Towards loss of earning, the appellant claimed a sum of Rs.35,000/- and a further sum of Rs.15,000/- towards partial loss of earnings. The Tribunal noticed that in Exts.A23 and A23A salary slips for the month of May, 2010 and June 2010, there is no indication as to loss of salary to the appellant on account of the injuries sustained in the accident or the treatment he had undergone. In the absence of any reliable materials, the Tribunal rejected the claim made by the appellant towards loss of earnings, which warrants no interference in this appeal. 13. Towards medical expenses, the Tribunal awarded a sum of Rs.23,000/-, covered by Ext.A19 series of medical bills. **MACA.No.776 OF 2016** **8** 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. 14. Towards bystander expenses, the Tribunal awarded a sum of Rs.600/- at the rate of Rs.100/- for 6 days in-patient treatment. Towards extra nourishment, no compensation was granted. Considering the fact that the appellant had undergone in-patient treatment for a period of 6 days, this Court deem it appropriate to re-fix the compensation under the head bystander expenses at Rs.1,500/- (250x6) resulting to an additional compensation of **Rs** . **900** /- (1,500-600). Towards extra nourishment, the appellant is granted a sum of **Rs** . **900** /- (150x6). 15. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1500/-, which represents just and reasonable compensation, which warrants no enhancement in this appeal. 16. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2010, this Court deem it appropriate to re-fix the **MACA.No.776 OF 2016** **9** compensation under this head as Rs.1000/-, resulting an additional compensation of **Rs** . **750/-** (1000-250)/-. 17. Towards pain and suffering, the Tribunal awarded a sum of Rs.12,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to re-fix the compensation under this head as Rs.15,000/- resulting an additional compensation of **Rs** . **2500** /- (15,000-12,500). 18. 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 **MACA.No.776 OF 2016** **10** **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. 19. 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. 20. Towards loss of earning power, no amount has been awarded by the Tribunal. In Ext.X2 disability certificate issued by the Medical Board, the permanent disability that had arisen out of the injuries sustained in the accident, is assessed as 9%. Though the said disability may have no bearing on the earning capacity of the appellant while he is in service, the same will certainly have a bearing on his earning capacity after retirement. The appellant can be granted compensation towards loss of earning, after retirement from service, taking a **MACA.No.776 OF 2016** **11** notional income of Rs.7,500/- and applying a multiplier of **9** applicable to the age group of 56 to 60 years, since the age of retirement being 58 years, and percentage of disability as 9%. Therefore, the appellant is granted **Rs.72,900/-** (7,500 x 12 x 9 x 9 / 100) as compensation under the head, loss of earning power. 21. Towards loss of amenities and inconvenience, the Tribunal awarded a sum of Rs.45,000/-. Considering the nature of injuries sustained and 9% permanent disability assessed in Ext.X2 disability certificate, the compensation awarded by the Tribunal under this head is on a higher side, which has to be scaled down to Rs.15,000/-, resulting an excess compensation of Rs.30,000/-, which has to be deducted from the additional compensation granted in this appeal. 22. In the result, the appellant is entitled for an additional compensation of **Rs** . **47,950/-** [(900 + 900 + 750 + 2,500 + 72,900) - 30,000] (Rupees Fourty Seven Thousand Nine Hundred and Fifty) in this appeal which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent insurer shall satisfy the additional compensation granted in this appeal, together with interest, **MACA.No.776 OF 2016** **12** 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. 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** Nsd //true copy// PA to Judge **JUDGE**