Shanmughan v United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** **MACA.No.1307 OF 2009** **AGAINST THE AWARD IN OPMV 712/2003 DATED 18-04-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER IN OP(MV) 712/03:** **SHANMUGHAN, S/O.KURUMBAN, KAKKADAMPILLIL HOUSE, EDATHALA,, ALUVA.** **BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI** ## **RESPONDENT/RESPONDENT NO.3 IN OP(MV) 712/03:** **UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, K.A.P.COMMERCIAL CENTRE, PUMP JN., R.S.ROAD, ALUVA.** **R1 BY ADV. SMT. DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1307 OF 2009** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.712 of 2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, 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 31.01.2003, while he was standing on the side of a public road. At the place of accident, he was knocked down by a lorry bearing registration No.KL-2D/7666, 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, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by its driver, claim petition was filed before the Tribunal. 2. Before the Tribunal, the owner and driver of the lorry remained absent and they were set ex-parte. 3. The insurer filed written statement admitting insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly **MACA.No.1307 OF 2009** 3 excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and the doctor who issued Ext.A9 disability certificate was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. 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 its 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.2,66,140/(which was rounded off to Rs.2,66,150/-) together with interest at the rate of 7% per annum from the date of petition till date of realisation, and the 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 Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the respondent insurer. **MACA.No.1307 OF 2009** 4 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 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 **MACA.No.1307 OF 2009** 5 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; |al under various heads reads thus;|| |---|---| |Loss of income|12,000| |Treatment expenses|132,050| |Attendant's charges|10,000| |Extra nourishment|3,000| |Damage to clothing|250| |Transportation charges|2,000| |Pain and suffering|25,000| |Loss of amenities and discomfort|20,000| |Disfiguration and loss of marriage prospects|10,000| |Compensation for disability|51,840| |TOTAL|2,66,140/-<br>rounded off to<br>2,66,150/-| 12. The accident occurred on 31.01.2003. At the time of accident, the appellant was aged 28 years. He claimed a monthly income of Rs.4,000/- as headload worker. In order to prove the monthly income, Ext.A11 identity card issued by the Assistant **MACA.No.1307 OF 2009** 6 Labour Officer, Aluva, is placed on record. The appellant has not chosen to mount the box to prove the monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 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 **MACA.No.1307 OF 2009** 7 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 the economic conditions prevailing at the time of accident, i.e., during the year 2003, and taking note of the fixation of notional monthly **MACA.No.1307 OF 2009** 8 income by the Apex Court in the decisions referred to supra, the monthly income of Rs.4,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the wound certificate issued from Medical Trust Hospital. As per Ext.A3, the appellant sustained compound comminuted fracture both bones; type II compound comminuted fracture to lower end of right tibia; fracture to 1/3[rd] of right femur; compound comminuted fracture neck and lower end of right fibula; fracture to lateral condyle right femur; multiple lacerated wounds on right thigh end right gluteal region with loose fragments of bone; X-ray of pelvis with both hip joints showed fracture to neck with upper 3[rd] of right femur comminuted. X-ray of right femur showed comminuted fractures upper third. X-ray of right leg showed fracture to fibula neck and lower end and fracture to end of tibia. He had undergone four surgeries and inpatient treatment for a total period of 72 days. Exts.A7 and A12 series of medical bills are for a total sum of Rs.1,32,050/- **MACA.No.1307 OF 2009** 9 17. The document marked as Ext.A9 is the medical certificate issued by the Medical Board at General Hospital, Ernakulam, in which the percentage of permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 16%. However, the Tribunal took the percentage of disability as 12%. The reasoning of the Tribunal as contained in page 9 of the award reads thus: As per the disability certificate, the petitioner had difficulty in bending right knee and his right leg is swollen. 15 x 12 cms skin grafted area right leg anterolaterally. His right knee movements are from 180[0] to 80[0] fledion and right ankle movements from 90[0] to 125[0] plantar flexion. Inversion, eversion, adduction and abduction 10[0] each. Right hip – No adduction/abduction 25[0] . No IR, ER-30[0] . X- ray of right hip showed malunited trochanter with Recon nail in situ. Right leg showed malunited segmental fracture both bones with 10[0] lateral angulation. Based on the above findings the total permanent physical disability of the petitioner is assessed as 16% as per Mc Bride's scale. According to the learned counsel for the petitioner, 16% is very less considering the injuries sustained to the petitioner. One of the doctor in the Medical Board, named Mohammad Ali was examined in this case as PW1. According to the doctor he has assessed the disability on the basis of clinical and radiological examination and he has not stated whether it affects his whole body or not. **MACA.No.1307 OF 2009** 10 Any way, there is no doubt that the injury caused some sort of disability to the petitioner. The doctor who issued the certificate has not stated whether it affects the whole body or not. However, I found it just and proper to take 12% as the disability which affects the whole body of the petitioner. 18. Considering the nature of disabilities noted in Ext.A9, this Court finds that, since the appellant is a headload worker, as evident from Ext.A11 identity card, the percentage of disability assessed in Ext.A9 as 16% can be taken as the functional disability, for the purpose of awarding compensation under various heads. Therefore, the appellant is entitled for disability compensation, taking the percentage of disability as 16%. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (4,000 x 6), resulting an additional compensation of **Rs.12,000/-** **MACA.No.1307 OF 2009** 11 (24,000 – 12,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 72 days. The accident is of the year 2003. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. 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 is re-fixed as Rs.3,000/-, resulting an additional compensation of **Rs.1,000/-** (3,000 – 2,000). 21. Towards attendant's charges the Tribunal awarded a sum of Rs.10,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 72 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head attendant's charges is re-fixed as Rs.10,800/- (150 x 72), resulting an additional compensation of **Rs.800/-** (10,800 – 10,000). The compensation under the head extra nourishment is re-fixed as Rs.7,200/- (100 x **MACA.No.1307 OF 2009** 12 72), resulting an additional compensation of **Rs.4,200/-** (7,200 – 3,000). 22. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 - 250). 23. Towards medical expenses, the Tribunal awarded a sum of Rs.1,32,050/-, covered by Exts.A7 and A12 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. 24. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone (which includes four surgeries) the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.30,000-, resulting an additional compensation of **Rs.5,000/-** (30,000 – 25,000). **MACA.No.1307 OF 2009** 13 25. 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, 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. 26. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex **MACA.No.1307 OF 2009** 14 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. 27. In the instant case, as on the date of accident, the appellant was aged 28 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 not correct and the proper multiplier to be applied is **17** . 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.51,840/- (2,000 x 12 x 18 x 12/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 16%, the compensation under the head permanent disability is re-fixed as Rs.1,30,560/- (4,000 x 12 x 17 x 16/100), resulting an additional compensation of **Rs.78,720/-** (1,30,560 - 51,840). 29. As compensation for disfiguration and loss of marriage prospects, the Tribunal awarded a sum of Rs.10,000/-. Considering **MACA.No.1307 OF 2009** 15 the nature of injuries sustained and the resultant disfiguration, as borne out from medical records, the compensation awarded by the Tribunal under the head disfiguration and loss of marriage prospects is re-fixed as Rs.15,000-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 30. Towards loss of amenities the Tribunal awarded a sum of Rs.20,000/-. In Ext.A9 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 16%. Considering the nature of injuries sustained and 16% permanent disability on account of those injuries assessed in Ext.A9, 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. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.1,07,220/-** (Rupees one lakh seven thousand two hundred and twenty only) (12,000 + 1,000 + 800 + 4,200 + 500 + 5,000 + 78,720 + 5,000) in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 694 days in filing this appeal, which was condoned by the order **MACA.No.1307 OF 2009** 16 dated 18.06.2019, subject to the condition that the appellant will not be entitled to claim interest for the enhanced compensation, if any, granted in the appeal for the period of delay. 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 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 provide his bank account details before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** ## **JUDGE** JV