Sreeju P.S. v. G. Dakshayani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **MACA.No.875 OF 2008** **AGAINST THE AWARD IN OP(MV) No.3611/1999 DATED 04-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** **APPELLANT/S:** **SREEJU.P.S, AGED 33 YEARS S/O. P. SUBRAMANIAN, MANAYIDAPARAMBIL HOUSE, NEAR AYYAMPILLIKKAVU TEMPLE, EROOR, (VIA), TRIPUNITHURA.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI** ## **RESPONDENT/S:** |**1**|**G.DAKSHAYANI, W/O.GUNASEKARAN,**| |---|---| ||**16/2 ESM STREET,ARASAMARAPET, VELLORE.**| |**2**|**K. ANNAMALI, S/O. KANNAN,**| ||**CHINNAKANGANELLORE VILLAGE,**| ||**ANAICUT (VIA), VELLORE TALUK.**| |**3**|**THE ORIENTAL INSURANCE COMPANY LTD. LIMITED**| ||**REPRESENTED BY TIS REGIONAL MANAGER,**| ||**COCHIN 682 035.**| |**4**|**THE UNITED INDIA INSURANCE COMPANYLIMITED**| ||**HOSPITAL ROAD, COCHIN 682 011.**| ||**R1 BY ADV. SRI.P.JACOB MATHEW**| ||**R1 BY ADV. SRI.MATHEWS JACOB SR.**| ||**R1 BY ADV. SRI.N.S.MOHAMMED USMAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 875 of 2008 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3611 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 19.09.1999, while he was standing on the side of a National Highway. At the place of accident, he was knocked down by a lorry bearing registration No.TN-23/B-2896 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 lorry by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver remained absent and they were set ex parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the lorry involved in the MACA No. 875 of 2008 -3- accident; however, denying the negligence alleged against its driver. The insurer contended that at the time of accident, the 2[nd] respondent was driving the lorry without a valid and effective driving licence and as such, the insurer is entitled for recovery right. 4. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A24 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. 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] respondent 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.1,45,320/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost, and the MACA No. 875 of 2008 -4- insurer was directed to satisfy the award. On the ground that, at the time of accident, the 2[nd] respondent was not holding a valid driving licence, the 3[rd] respondent insurer was granted recovery right against respondents 1 and 2 for the amount of compensation paid to the appellant/claimant. 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 3[rd] respondent/insurer. Despite service of notice none appears for the 1[st] respondent owner. Service of notice on the 2[nd] respondent driver was effected through paper publication. 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 MACA No. 875 of 2008 -5- 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 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 MACA No. 875 of 2008 -6- 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; |Head|Amount awarded|Amount awarded| |---|---|---| |Transportation, hospitalisation,||| |Attendant expenses, extra nourishment and||2,500/-| |Damage to clothings||| |Medical expenses||47,820/-| |Loss of earnings||10,000/-| |Pain and suffering||40,000/-| |For discomforts, inconveniences||| |and mental agony||25,000/-| |Shortening to expectation of life||15,000/-| |Future medical expenses||5,000/-| ||-----------------------|| ||Total|1,45,320/-| ||=============|| 12. The accident occurred on 19.09.1999. At the time of accident, the appellant was aged 24 years. The appellant claimed a monthly income of Rs.4,000/- as AC mechanic. Ext.A13 salary certificate and Ext.A14 leave certificate issued by the employer were placed on record. The appellant has not MACA No. 875 of 2008 -7- chosen to mount the box to prove his monthly income. The employer was also not examined to prove Exts.A13 and A14. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,500/-, 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 MACA No. 875 of 2008 -8- 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 MACA No. 875 of 2008 -9- vegetable vendor is reasonably capable of earning 6,500/- per month. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 1999, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.2,500/- fixed by the Tribunal is not on the lower side, which requires no enhancement in this appeal. 16. The document marked as Ext.A6 is the wound certificate and Ext.A7 is the discharge card. As per medical records, in the accident, the appellant sustained multiple abrasions, contusions, lacerations, linear fracture of left temporal bone, fracture of mandible, right parasymphysis, right zygomatic complex and right brachial plexus injury. CT scan showed diffuse cerebral oedema. Open reduction and internal fixation of mandible and zygoma with intermaxillary fixation was done. There was avulsion of one tooth and fracture of five teeth. Ext.A8 is the treatment certificate. He had undergone inpatient treatment for 35 days. As per Ext.A8, MACA No. 875 of 2008 -10- the appellant required another surgical procedure for plate removal from mandible and wire removal from right zygoma. Ext.A10 series are the photographs showing the physical condition of the appellant. Ext.A16 series of medical bills are for a sum of Rs.47,813.66/-. Ext.A15 taxi bills are for taxi charges at the rate of Rs.120/- per day for 35 days. 17. The document marked as Ext.A11 is the disability certificate issued by the Medical Board at the General Hospital, Ernakulam in which 5% disability is assessed. The Tribunal noticed that nothing is mentioned in Ext.A11 as to whether the disability is permanent or partial. Before the Tribunal it was pointed out that the appellant suffers from short term lapse of memory, on account of the injuries sustained to the temporal region. The appellant was personally present before the Tribunal. The Tribunal noticed that his physical appearance is suggestive of some mental instability or disorientation. Having considered the nature of injuries sustained by the appellant and the disabilities on account of those injuries (mental instability/disorientation MACA No. 875 of 2008 -11- noticed by the Tribunal), this Court deem it appropriate to take 5% disability assessed by the Medical Board in Ext.A11, for the purpose of awarding compensation under the head permanent disability. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,500/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Therefore, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (2,500 x 6), resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 19. Towards transportation, hospitalisation, attendant expenses, extra nourishment and damage to clothing, the Tribunal awarded a consolidated sum of Rs.2,500/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 35 days. The accident is of the year 1999. Considering the nature of injuries MACA No. 875 of 2008 -12- sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the above heads is re-fixed as follows; Rs.2,500/- towards transportation expenses; Rs.5,250/- (35 x 150) towards attendant expenses (bystander expenses); Rs.3,500/- (35 x 100) towards extra nourishment; and Rs.750/- towards damage to clothing, resulting an additional compensation of **Rs.9,500/-** [(2,500 + 5,250 + 3,500 + 750) – 2,500]. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.47,820/-, covered by Ext.A16 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 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 MACA No. 875 of 2008 -13- 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 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 MACA No. 875 of 2008 -14- 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 24 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 proper multiplier to be applied is **18** . 25. The Tribunal awarded no compensation under the head permanent disability. Instead, the Tribunal awarded a sum of Rs.25,000/- towards discomforts, inconveniences and mental agony and a further sum of Rs.15,000/- towards shortening to expectation of life. The Tribunal fixed the monthly income of the appellant as Rs.2,500/-, notionally. MACA No. 875 of 2008 -15- Applying the multiplier of 18 applicable to the age group of the appellant and the percentage of loss of earning capacity as 5%, he is granted as sum of Rs.27,500/- (2,500 x 12 x 18 x 5/100) under the head permanent disability. Considering the nature of injuries sustained by the appellant and the disabilities on account of those injuries (mental instability/ disorientation noticed by the Tribunal) he is granted a further sum of Rs.25,000/- under the head loss of amenities. Deducting Rs.25,000/- awarded by the Tribunal towards discomforts, inconveniences and mental agony and Rs.15,000/- awarded towards shortening of expectation of life, the appellant is entitled for an additional compensation of **Rs.12,500/-** [(27,500 + 25,000) – (25,000 + 15,000)] under the above heads. 26. Towards future medical expenses, the Tribunal awarded a sum of Rs.5,000/-. As already noticed, as per Ext.A8 treatment certificate, the appellant require surgical procedure for plate removal from mandible and wire removal from right zygoma. Considering the aforesaid fact, the MACA No. 875 of 2008 -16- compensation under the head future medical expenses is refixed as Rs.25,000/-, resulting an additional compensation of **Rs.20,000/-** (25,000 – 5,000), which will carry no interest. 27. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.47,000/-** (Rupees forty seven thousand only) [5,000 + 9,500 + 12,500 + 20,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding Rs.20,000/- awarded under the head future medical expenses. The 3[rd] 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 3[rd] respondent insurer shall recover the said amount by proceeding against the 1[st] respondent owner and the 2[nd] respondent driver. The disbursement of additional compensation to the appellant/ claimant shall be made taking note of the law on the point and MACA No. 875 of 2008 -17- 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 (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** das