Shoby Paul v. Tamil Nadu State Transport Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **MACA.No.132 OF 2008** **AGAINST THE AWARD IN O.P.(MV) NO.411/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT/PETITIONER:** **SHOBY PAUL, PARAKUDIYIL HOUSE, KAMBILIKANDAM KARA, PARATHODU, IDUKKI P.O., KONNATHADY VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI** ## **RESPONDENT/RESPONDENT:** **THE MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION LTD., MADURAI DIVISION 3, NESAMONY NAGAR,, RANITHOTTAM, NAGERCOVIL, TAMIL NADU-629 001.** **BY ADV.SRI.SUBHASH CYRIAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.132 OF 2008** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.411 of 2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, 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 24.09.2002, while he was riding a motorcycle bearing registration No.KRO/2591. At the place of accident, the motorcycle was hit by a bus bearing registration No.TN-74/N0610, owned by the respondent Tamilnadu State Transport Corporation. In the accident, he sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of bus by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the respondent filed written statement admitting the accident; however denying negligence alleged against the driver of the bus. The respondent contended that the accident occurred due to the rash and negligent driving of motorcycle by the appellant and that, the **MACA.No.132 OF 2008** -3- compensation claimed is on the higher side. 3. Before the Tribunal, Exts.A1 to A15 were marked on the side of the appellant/claimant. The appellant was examined as PW1. The respondents have not chosen to adduce any oral or documentary 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 bus by its driver. Since the said vehicle was not covered by a valid insurance policy, the respondent was held liable to pay the amount of compensation to the appellant/claimant. Under various heads, the Tribunal awarded a total compensation of Rs.2,50,480/-, together with interest at the rate of 6% per annum from the date of petition, i.e., 12.06.2003 till realisation, with proportionate cost. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/claimant and also the learned counsel for the respondent. **MACA.No.132 OF 2008** -4- 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. 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 **MACA.No.132 OF 2008** -5- 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 of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Transportation expenses|10,000/-| |2|Extra nourishment|3,200/-| |3|Bystander expenses|5,000/-| |4|Treatment expenses|1,47,200/-| |5|Pain and suffering|25,000/-| |6|Disability|55,080/-| |7|Compensation for discontinuation<br>of studies|5,000/-| ||**TOTAL**|**2,50,480/-**| 11. The accident occurred on 24.09.2002. At the time of accident, the appellant was a B.Tech student aged 22 years, who joined that course after securing Diploma in Electronics **MACA.No.132 OF 2008** -6- and Communication Engineering with first class, in April, 2002. Ext.A12 is the transfer certificate issued from Sun College of Engineering and Technology, Nagarcoil. After the accident, he discontinued his studies on 18.09.2002. 12. In **National Insurance Co. Ltd. v. Fathimath Zuhara [2016 (3) KLT 459]** , in respect of a motor accident, which occurred on 10.05.2005, involving the death of six Engineering students of LBS College of Engineering, Kasaragode, who were aged 19 years, a Division Bench of this Court accepted the fixation of notional monthly income by the Tribunal at Rs.12,000/-. 13. In the instant case, the accident occurred on 24.09.2002. The appellant who was aged 22 years joined B.Tech course on lateral entry, after securing Diploma in Electronics and Communication Engineering with first class. Considering the facts and circumstances of the case and taking note of the fixation of the monthly income in **Fathimath Zuhara's case** (supra), the monthly income of the appellant for the purpose of awarding compensation under various heads, can be taken as Rs.8,000/-. **MACA.No.132 OF 2008** -7- 14. The document marked as Ext.A4 is the wound certificate and Exts.A6 and A7 are discharge summaries. As per medical records, the injuries sustained by the appellant are as follows; - “1. Bilateral nasal bleeding. 2. Multiple abrasion (4 in Nos.) over the anterior medley aspect of right knee and proximal one third of leg of size 2 x 1 cm., 1 x 1 cm respectively involving the skin only. 3. Abrasion over the anterior aspect of left thigh of size 3 x 1 cm involving the skin only. 4. Laceration of 5 x 2 cm over the fronto parietal junction extending from left to right crossing the middle exposing the skull. 5. Swelling with deformity and abnormal mobility over the junction of proximal and middle one third of right thigh with underlying bone fracture. 6. Multiple abrasions (6 in Nos.) over the anterior aspect of right shoulder, right infra clavicular area, right sterno clavicular point and left sterno clavicular joint of size 5 x 5 cm respectively. 7. Abrasion over the left side of forehead, middle of forehead and right cheek of size 2 x 1 cm, 1 x 1 cm and o.5 cm and 1 x 5 cm respectively. 8. Abrasion over the lateral aspect of the right eyebrow of size .5 x .5 cm with underlying bone fracture. 9. Abrasion over the dorsal aspect of proximal and drstal **MACA.No.132 OF 2008** -8- phalanx of right ring finger of size 0.5 x 0.5 cm respectively. 10. External head injury was at present.” 15. The appellant was admitted at Krishna Kumar Orthopedic Hospital, Nagercoil on 24.09.2003 and discharged on 27.09.2002. External head injury was at present. X-ray of chest and pelvis showed no abnormality. X-ray of thigh showed fracture of shaft. CT scan of brain taken on 24.09.2002 showed sub-arachnoids haemorrhage and fracture of frontal bone involving roof of right orbit. CT scan of brain taken on 26.09.2002 showed right basi frontal contusion, subarachnoids haemorrhage along tentorium, fissure fracture frontal bone involving right ambit and haemosinus. Ext.A5 is the scan report of brain dated 24.09.2002. Ext.A6 is the discharge summary from Krishna Kumar Orthopaedic Hospital, Nagercoil. Ext.A7 is the discharge summary from Kerala Institute of Medical Sciences, Thiruvananthapuram. The appellant had undergone inpatient treatment in the said hospital from 27.09.2002 till 29.10.2002. Upper Tibial skeletal traction was given. He was managed conservatively for head injury. X-ray taken on 14.10.2002 revealed maluniting fracture **MACA.No.132 OF 2008** -9- with callus formation. Therefore, interlocking (10 x 40 mm nail sulzer on distal lock, 1 proximal lock nailing with release of callus were done under Ebidural on 16.10.2002. Sutures were removed on 28.10.2002. Thereafter, he was advised nonweight bearing ambulation with walker. He was discharged with advise to review on 13.12.2002. Ext.A8 series are certificates dated 29.01.2003 and 16.10.2004 issued from Kerala Institute of Medical Sciences and MEMM Hospital, Kothamangalam respectively revealing that he had post traumatic headache and anosmia (loss of power of smell). The permanent disability of 5% is assessed on that reason. In Ext.A8, it is further certified that the injured had discontinued his studies for at least two years on account of the severe nature of the head injury suffered by him. Ext.A9 is a certificate issued by the Medical Board at the Taluk Head Quarters Hospital, Thodupuzha wherein 25% permanent disability was assessed on account of post traumatic headache and loss of sensation of smell. It is further reported that the appellant has restriction in flexion of his right hip and knee and difficulty to squat. Mild writing was also reported present. On that basis, 25% **MACA.No.132 OF 2008** -10- disability was assessed by the Medical Board. 16. Ext.A10 is an attested photocopy of the CBSE mark list dated 05.06.1996. Ext.A11 is an attested photocopy of the certificate issued from the State Board of Technical Education and Training, Chennai, which shows that the injured had taken Diploma in Electronics and Communication Engineering on 1[st] class on April, 2002. Ext.A12 is an attested photocopy of the transfer certificate issued from Sun College of Engineering and Technology, Nagercoil showing that the injured had discontinued his studies on 18.09.2002. Ext.A18 is an attested photocopy of the driving licence of the appellant. Ext.A14 series are medical bills showing an expenditure of Rs.1,46,157/- towards treatment. Ext.A15 series contain taxi couches and receipts showing ambulance charges. The total sum under Ext.A15 series come to Rs.29,920/-. 17. The document marked as Ext.A9 is the disability certificate issued by the Medical Board at Taluk Head Quarters Hospital, Thodupuzha, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25% on the ground of post traumatic headache **MACA.No.132 OF 2008** -11- and loss of sensation of smell. He had restriction in flexion of his right hip and knee and difficulty to squat. Mild writing was also reported present. The Tribunal took the percentage of permanent disability as 18%. When the assessment of permanent disability in Ext.A9 is by the Medical Board at Taluk Headquarters Hospital, in the absence of any vitiating circumstances pointed out in the assessment made by the Medical Board, the Tribunal went wrong in scaling down the percentage of permanent disability is 18%. Therefore, the appellant is entitled for assessment of disability compensation, taking the percentage of permanent disability as 25%, as assessed in Ext.A9. 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 36 days. The accident is of the year 2002. Towards transportation to hospital, the Tribunal awarded a sum of Rs.10,000/-. 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 represents just and reasonable compensation, which **MACA.No.132 OF 2008** -12- requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.5,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,200/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 36 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 bystander expenses is re-fixed as Rs.5,400/- (150 x 36), resulting an additional compensation of **Rs.400/-** (5,400 - 5,000). The compensation under the head extra nourishment is re-fixed as Rs.3,600/- (100 x 36), resulting an additional compensation of **Rs.400/-** (3,600 - 3,200). 20. Towards treatment expenses, the Tribunal awarded a sum of Rs.1,47,200/-, covered by Ext.A14 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. 21. As compensation towards pain and suffering, the **MACA.No.132 OF 2008** -13- Tribunal awarded a sum of Rs.25,000/-. 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 refixed as Rs.30,000/-, resulting an additional compensation of **Rs.5,000/-** (30,000 - 25,000). 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 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, **MACA.No.132 OF 2008** -14- 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 22 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 17 applied by the Tribunal is not correct and the proper multiplier to be applied is **18** . 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.55,080/- (1,500 x 12 x 17 x 18/100). In this appeal, the permanent disability of the **MACA.No.132 OF 2008** -15- appellant on account of the injuries sustained in the accident is taken as 25%, as assessed by the Medical Board in Ext.A9 disability certificate. Since the monthly income of the appellant has already been re-fixed as Rs.8,000/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 25%, the compensation under the head permanent disability is re-fixed as Rs.4,32,000/- (8,000 x 12 x 18 x 25/100), resulting an additional compensation of **Rs.3,76,970/-** (4,32,000 - 55,030). 26. The Tribunal awarded no compensation towards loss of amenities. In Ext.A9 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. Considering the nature of injuries sustained and 25% permanent disability on account of those injuries, as assessed in Ext.A9 disability certificate, this Court deem it appropriate to grant a sum of **Rs.25,000/-** as compensation under this head. 27. As compensation for discontinuation of studies, the Tribunal awarded a sum of Rs.5,000/-. As evident from Ext.A12 **MACA.No.132 OF 2008** -16- transfer certificate issued from Sun College of Engineering, Nagarcoil, the appellant discontinued his studies on 18.09.2002. In such circumstances, the compensation for discontinuation of studies is re-fixed as Rs.30,000/-, resulting an additional compensation of **Rs.25,000/-** (30,000 - 5,000). 28. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.4,32,770/-** (Rupees four lakh thirty two thousand seven hundred and seventy only) [400 + 400 + 5,000 + 3,76,970 + 25,000 + 25,000] 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 222 days in filing this appeal, which was condoned by the order dated 01.11.2013. The respondent 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 **MACA.No.132 OF 2008** -17- 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 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 the Tribunal, with copy to the learned Standing Counsel for the respondent Corporation, 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