Sijo John v KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 08TH DAY OF JANUARY 2020 / 18TH POUSHA, 1941** ## **MACA.No.182 OF 2007** **AGAINST THE AWARD IN OPMV 3306/2001 DATED 24-02-2006 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, TSR** ## **APPELLANT:** **SIJO JOHN, S/O.JOHNY, PARAMBAN HOUSE, CHIYYARAM P.O., THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS:** **1 KSRTC, THIRUVANANTHAPURAM, REP. BY THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 2 G.R.JAYAN S/O.RAMAKRISHNAN GURUSWAMI VILLA, PAMBADI P.O., THALAPPILLY TALUK, THRISSUR DISTRICT. R1 BY SMT.BIMALA BABY, SC, KSRTC R1 BY SHRI.JOHNSON P.JOHN, SC, KSRTC R1 BY SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.182 of 2007 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3306 of 2001 on the file of the Motor Accidents Claims Tribunal, Thrissur, 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 04.09.2001, while he was riding a motorcycle bearing registration No.KL-8/M-323. At the place of accident, the motorcycle was hit by a KSRTC bus bearing registration No.KL15/3048 owned by the 1[st] respondent and driven by the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. 3. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and he was examined as PW1. The document marked as Ext.A9 is the disability M.A.C.A.No.182 of 2007 3 certificate issued by a doctor assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 negligence was found on the side of the 2[nd] respondent driver, the 1[st] respondent Corporation was held liable to compensate the claimant. Under various heads, the Tribunal awarded a total compensation of Rs.1,25,100/-, together with interest at the rate of 7% per annum from the date of petition, i.e., from 24.12.2001, till date of realisation, with proportionate cost, and the 1[st] respondent Corporation was directed to satisfy the award. 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 Standing Counsel for KSRTC, appearing for the 1[st] respondent. M.A.C.A.No.182 of 2007 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 M.A.C.A.No.182 of 2007 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; ||The compensation claimed under various<br>heads|Amount allowed| |---|---|---| |1|Loss of earning|Rs.10,000/-| |2|Expense for transportation|Rs.500/-| |3|Expense for extra nourishment|Rs.1,000/-| |4|Damage to clothing|Rs.500/-| |5|Expense for treatment|Rs.40,700/-| |6|Expense for personal assistance|Rs.1,600/-| |7|Compensation for pain and suffering|Rs.10,000/-| |8|Compensation for permanent disability|Rs.40,800/-| |9|Compensation for loss of amenities|Rs.10,000/-| |10|Compensation for marriage prospects|Rs.10,000/-| ||Total|Rs.1,25,100/-| 11. The accident occurred on 04.09.2001. At the time of M.A.C.A.No.182 of 2007 6 accident, the appellant was aged 22 years. The appellant claimed a monthly income of Rs.6,000/- as Gold Worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant mounted the box as PW1. 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. 12. 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 M.A.C.A.No.182 of 2007 7 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. 13. 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. 14. In the absence of any reliable evidence, considering M.A.C.A.No.182 of 2007 8 the economic conditions prevailing at the time of accident, i.e., during the year 2001, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,250/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate; Ext.A6 is the discharge summary; and Ext.A8 is the medical certificate. As per medical records, the appellant had sustained head injury; compound fracture II metacarpal right compound fracture proximal phalanx left little finger; lacerated wound over dorsum aspect of left wrist extending to dorsal aspect of hand lacerated wound over left dorsal aspect of proximal phalanex crushed wound both elbow; multiple bodily injuries; chip fracture 2[nd] metacarpal right and pisiformmed subluxation; and degloving injury both hand avulsion extremity left lower arch. The appellant had undergone inpatient treatment for a period of 16 days. Ext.A11 series of medical bills are for a sum of Rs.40,668.83/-. 16. In Ext.A9 disability certificate issued by a doctor, M.A.C.A.No.182 of 2007 9 the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 22%. Since Ext.A9 disability certificate was not proved by examining the doctor concerned, the Tribunal took the percentage of disability as 10%. Considering the nature of disabilities noted in Ext.A9 disability certificate and also the disabilities as evidenced by Ext.A12 photographs, this Court deem it appropriate to re-fix the percentage of disability as 14%, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,000/- for a period of 5 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 5 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.3,250/-, the compensation under the head loss of earning is re-fixed as Rs.16,250/- (3,250 x 5), resulting an additional compensation of **Rs.6,250/-** (16,250 - 10,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 16 days. M.A.C.A.No.182 of 2007 10 The accident is of the year 2001. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.1,000/-** (1,500 - 500). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,600/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the year 2001 and the appellant had undergone inpatient treatment for 16 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.2,400/- (150 x 16), resulting an additional compensation of **Rs.800/-** (2,400 - 1,600). The compensation under the head extra nourishment is re-fixed as Rs.1,600/- (100 x 16), resulting an additional compensation of **Rs.600/-** (1,600 - 1,000). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of M.A.C.A.No.182 of 2007 11 the year 2001, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.40,700/-, covered by Ext.A11 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. 22. As compensation towards pain and suffering, 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 the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 - 10,000). 23. 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** M.A.C.A.No.182 of 2007 12 **[(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. 24. 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. 25. In the instant case, as on the date of accident, the M.A.C.A.No.182 of 2007 13 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** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.40,800/- (2,000 x 12 x 17 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,250/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 14%, the compensation under the head permanent disability is re-fixed as Rs.98,280/- (3,250 x 12 x 18 x 14/100), resulting an additional compensation of **Rs.57,480/-** ( 98,280 - 40,800). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. The permanent disability of the appellant, on account of the injuries sustained in the accident, is taken as 14%. Considering the nature of injuries sustained and the permanent disability on account of those injuries, the compensation awarded by the Tribunal under this head is refixed as Rs.15,000/-, resulting an additional compensation of M.A.C.A.No.182 of 2007 14 ## **Rs.5,000/-** (15,000 - 10,000). 28. Towards loss of marriage prospects, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the physical condition of the appellant, as discernible from Ext.A12 photographs, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 - 10,000). 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.86,380/-** (Rupees Eighty Six Thousand Three Hundred and Eighty only) [6,250 + 1,000 + 800 + 600 + 250 + 5,000 + 57,480 + 5,000 + 10,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 1[st] respondent Corporation 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 M.A.C.A.No.182 of 2007 15 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.D162475/2016 dated 07.11.2019. The appellant shall provide his Bank account details before the Tribunal, with copy to the learned Standing Counsel for KSRTC, 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** yd