Subash Mathew Elampachaveettill v. Biju Mathew, Jayachandran M.J. and National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019/13TH KARTHIKA, 1941** ## **MACA.No.1128 OF 2007** **AGAINST THE AWARD IN OP(MV)No.358/2003 DATED 29-07-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **SUBASH MATHEW ELAMPACHAVEETTIL, EDAPPADY P.O.,, PALA, KOTTAYAM DISTRICT.** **BY ADV. SRI.C.S.SUNIL** ## **RESPONDENT/S:** |**1**|**BIJU MATHEW**| |---|---| ||**KAROORKAYATHINKARA, PAYYAPPAR P.O.**| |**2**|**JAYACHANDRAN M.J.**| ||**MATTAPPALLY HOUSE, VAZHAPPALLY P.O.,,**| ||**CHANGANACHERRY.**| |**3**|**NATIONAL INSURANCE CO. LTD.**| ||**PALA, REP. BY ITS BRANCH MANAGER.**| ||**SRI.LAL GEORGE, SC**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 1128 of 2007 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.358 of 2003 on the file of the Motor Accidents Claims Tribunal, Pala, 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 24.12.2002, while he was riding a motorcycle bearing registration No.KL-07/N-1021. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KEO-1274, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.7,36,000/-, under various heads. 2. Before the Tribunal, though the 1[st] respondent owner entered appearance, no written statement was filed. The 2[nd] respondent rider filed written statement admitting the -3- MACA. No. 1128 of 2007 accident; however, denying the negligence alleged against him. It was pointed out that the vehicle involved in the accident was having valid insurance with the 3[rd] respondent insurer. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the motorcycle involved in the accident; however, denying the negligence alleged against the 2[nd] respondent rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A19 were marked on the side of the appellant/claimant and PWs 1 and 2 were examined. No oral or documentary evidence was adduced by the respondents. 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 riding of the offending motorcycle by the 2[nd] respondent rider. Since insurance -4- MACA. No. 1128 of 2007 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.3,22,550 /- together with interest at the rate of 7.5% per annum from 13.06.2003 till realisation, along with a cost of Rs.8050/- and the 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 3[rd] respondent/insurer. 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 -5- MACA. No. 1128 of 2007 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 basis of materials brought on record in an individual case. The -6- MACA. No. 1128 of 2007 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 thu |Medical expenses|91,000/-| |---|---| |Loss of earnings|8,000/-| |Bystander expenses|3,000/-| |Extra-nourishment|500/-| |Damages to clothing|250/-| |Transport to hospital|2,000/-| |Pain and suffering|20,000/-| |Permanent partial disability|1,72,800/-| |Loss fo amenities|25,000/-| |**Total**|**3,22,550/-**| 12. The accident occurred on 24.12.2002. At the time of accident, the appellant was aged 27 years. The appellant claimed a monthly income of Rs.4,500/- as a watch repair. In order to substantiate the said claim, Exts.A16 membership certificate in Vyapari Vyavasai Ekopana Samithi and Ext.A17 voucher statement were produced. The appellant was examined as PW1. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant -7- MACA. No. 1128 of 2007 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 proceed to -8- MACA. No. 1128 of 2007 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, -9- MACA. No. 1128 of 2007 considering the economic conditions prevailing at the time of accident, i.e., during December 2002, 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.3,750/-, for the purpose of assessing compensation under various heads. 16. Ext.A5 is the wound certificate, which would show that the appellant had sustained head injury with multiple fractures of facial bones and orbit bones. Ext.A6 discharge summary indicates that he was admitted in Matha hospital, Thellakam on 24.12.2003 and discharged on 10.01.2004. He had depressed fracture of frontal bone, extra-dural haematoma, frontal contusion, left orbit fracture with rupture, multiple fractures of maxilla with segmental comminuted fracture of mandible. He had dislocation of facial bones. He was again admitted on 21.01.2003 and discharged on 05.02.2003. He was admitted for implant removal on 22.05.2003 and was discharged on the next day. Ext.A13 -10- MACA. No. 1128 of 2007 medical bills are for a sum of Rs.91,000/-. Besides the aforesaid injuries the appellant sustained rupture with intra ocular haemorrhage left eyeball. He had undergone inpatient treatment for a period of 32 days. 17. In Ext.A19 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. The Tribunal noticed that the injuries sustained by the appellant are very severe in nature. The appellant had fronto naso orbito maxillary complex with shattered fact, fracture of maxilla multiple segmental with midline split, mandible comminuted with midline and para median extension, cranio facial dislocation bilateral, nasal ocomplex-lisfranc type IV, frontal bone fracture with left extra dural haematoma with dorsal tear with CSF leak and traumatic telecanthus with shattered left orbit. He has lost one eye also. As per schedule of the Workmen's Compensation Act, the percentage of disability is 40% and therefore, the Tribunal accepted the percentage of permanent disability assessed in Ext.A19, for the purpose of awarding -11- MACA. No. 1128 of 2007 compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.8,000, at the rate of Rs.2,000/- per month 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 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,750/-, the compensation under the head loss of earning is re-fixed as Rs.18,750/- (3,750 x 5), resulting an additional compensation of **Rs.10,750/** - (18,750 – 8,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 32 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and treatment the appellant had undergone, with different spells of hospitalisation, as borne out from medical records, the compensation under this head is re-fixed -12- MACA. No. 1128 of 2007 as Rs.4,000/-, resulting an additional compensation of **Rs.2,000/-** (4,000 – 2,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs. 3,000/- . Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/- . The accident is of the year 2002 and the appellant had undergone inpatient treatment for 32 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.4,800/- (32 x 150), resulting an additional compensation of **Rs.1,800** /- (4,800 – 3,000) under this head. The compensation under the head extra nourishment is re-fixed as Rs.3,200 (32 x 100), resulting an additional compensation of **Rs.2,700/-** (3,200 – 500). 21. Towards damage to clothing the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of -13- MACA. No. 1128 of 2007 **Rs.500/-** (750-250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.91,000/-, covered by Ext.A13 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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.25,000/- resulting an additional compensation of **Rs.5,000/-** (25,000-20,000). 24. 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** -14- MACA. No. 1128 of 2007 **[(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. ## 25. 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 -15- MACA. No. 1128 of 2007 paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 27years. 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 and the proper multiplier to be applied is **17** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,72,800/- (24,000 x 18 x 40/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,750/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 40%, the compensation under the head permanent disability is re-fixed as Rs.3,06,000/- (3,750 x 12 x 17 x 40/100), resulting an additional compensation of **Rs.1,33,200/-** (3,06,000 – 1,72,800). 28. Towards loss of amenities the Tribunal awarded a -16- MACA. No. 1128 of 2007 sum of Rs.25,000/-. In Ext.A19 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 40%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.A19 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.40,000/-, resulting an additional compensation of **Rs.15,000/-** (40,000 – 25,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,70,950/-** (Rupees one lakh seventy thousand nine hundred and fifty only) [10,750 + 2,000 + 1,800 + 2,700 +500 + 5000 + 1,33,200 + 15,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 -17- MACA. No. 1128 of 2007 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 JUDGE** das