Subrahmannian v. Vinod, Moly Antony and National Insurance Co. Ltd., MACA No.822 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941** ## **MACA.No.822 OF 2010** **AGAINST THE AWARD IN O.P.(MV)NO.555/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER:** **SUBRAHMANNIAN, S/O.KRISHNAN, PINDANI HOUSE, KURUMASSERY KARA, PARAKKADAVUR, VILLAGE.** **BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE** ## **RESPONDENTS/RESPONDENTS:** |**1**|**VINOD,**| |---|---| ||**S/O.BALAN MENON,**| ||**MARANCHERIL HOUSE,**| ||**EAST OF SIVA TEMPLE,**| ||**AYYAMPILLY KARA,**| ||**KUZHUPILLY VILLAGE.**| |**2**|**MOLY ANTONY,**| ||**ATTIPETTY HOUSE,**| ||**PUTHUVYPU P.O., ERNAKULAM.**| |**3**|**NATIONAL INSURANCE COMPANY LIMITED,**| ||**BRANCH OFFICE, MUNICIPAL SHOPPING COMPLEX,**| ||**MAIN ROAD, N.PARAVUR.**| ||**R1 BY ADV. SRI.C.A.CHACKO**| ||**R3 BY ADV. SRI.LAL GEORGE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.822 OF 2010** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.555 of 2005 on the file of the Motor Accidents Claims Tribunal, North Paravur, 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 13.04.2005, while he was walking along the side of a public road. At the place of accident, he was knocked down by a bus bearing registration No.KL-7/AD-3177, driven by the 1[st] respondent, owned 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 bus by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the **MACA.No.822 OF 2010** -3- 1[st] respondent driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant and he was examined as PW1. Respondents have not chosen to adduce any oral or documentary evidence. The document marked as Ext.A6 is the disability certificate issued by the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the accident. 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 bus by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Under various heads, the Tribunal awarded a total compensation of Rs.1,72,000/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 24.08.2005 till date of realisation and the 3[rd] respondent insurer was directed to satisfy the award, less **MACA.No.822 OF 2010** -4- Rs.25,000/- paid towards interim 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. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent was dispensed with, by the order of this Court dated 19.12.2019. 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 **MACA.No.822 OF 2010** -5- 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 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 **MACA.No.822 OF 2010** -6- the Tribunal under various heads reads thus; ||Head of claim|Amount<br>awarded|Basis/vital details in<br>a nutshell| |---|---|---|---| |1|Loss of earning|4,000/-|2,000 x 2 months| |2|Treatment expenses|19,000/-|Ext.A8 series of<br>medical bills| |3|Loss of amenities|8,000/-|| |4|Pain and suffering|15,000/-|| |5|Disability compensation|1,26,000/-|| ||**TOTAL**|**1,72,000/-**|| 12. The accident occurred on 13.04.2005. At the time of accident, the appellant was aged 44 years. He claimed a monthly income of Rs.5,000/- as goldsmith. No materials were produced before the Tribunal to prove the monthly income of the appellant. He was examined 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. 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 **MACA.No.822 OF 2010** -7- 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 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 **MACA.No.822 OF 2010** -8- 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 2005, 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.5,000/- 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 cum discharge certificate. In the accident, the appellant sustained light petrous temporal Zygoma fracture right 3[rd] , nerve palsy; multiple abrasion over forehead, left **MACA.No.822 OF 2010** -9- temporal region and extremities. He had undergone inpatient treatment for a period of 9 days. Ext.A8 series of medical bills are for a sum of Rs.28,088/-. 17. In Ext.A6 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 35%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.4,000/-, at the rate of Rs.2,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.20,000/- (5,000 x 4), resulting an additional compensation of **Rs.16,000/-** (20,000 - 4,000). 19. The Tribunal awarded no compensation towards **MACA.No.822 OF 2010** -10- bystander expenses and extra nourishment. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 9 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.1,350/-** (150 x 9) under the head bystander expenses and a further sum of **Rs.900/-** (100 x 9) as compensation under the head extra nourishment. 20. The Tribunal awarded no compensation towards damage to clothing. Considering the fact that the accident is of the year 2005, this Court deem it appropriate to grant a sum of **Rs.750/-** as compensation under this head. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.19,000/-, covered by Ext.A8 series of medical bills. In this appeal, along with I.A.No.1 of 2019, the appellant has produced medical bills for a total sum of Rs.28,088/-. The learned Standing Counsel for the 3[rd] respondent insurer submitted that the insurer has no objection on the medical bills produced along with I.A.No.1 of 2019. In such circumstances, the appellant is granted a sum of **Rs.28,088/-** covered by **MACA.No.822 OF 2010** -11- Annexures A1 to A51 bills as additional compensation under the head medical expenses. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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 be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 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 [(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 **MACA.No.822 OF 2010** -12- 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 appellant was aged 44 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14** . **MACA.No.822 OF 2010** -13- 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.1,26,000/- (2,000 x 12 x 15 x 35/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 35%, the compensation under the head permanent disability is re-fixed as Rs.2,94,000/- (5,000 x 12 x 14 x 35/100), resulting an additional compensation of **Rs.1,68,000/-** (2,94,000 - 1,26,000). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.8,000/-. In Ext.A6 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 35%. Considering the nature of injuries sustained and 35% permanent disability on account of those injuries, as assessed in Ext.A6 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.35,000/-, resulting an additional compensation of **Rs.27,000/-** (35,000 - 8,000). 28. In the result, the appellant/claimant will be entitled **MACA.No.822 OF 2010** -14- for payment of an additional compensation of **Rs.2,42,088/-** (Rupees two lakh forty two thousand and eighty eight only) [16,000 + 1,350 + 900 + 750 + 28,088 + 1,68,000 + 27,000] 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 201 days in filing this appeal, which was condoned by the order dated 25.06.2019, subject to the condition that the claimant will not be entitled to claim interest for the enhanced compensation, if any, granted in the appeal for the period of delay. 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 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.D162475/2016 dated 07.11.2019. The appellant shall submit his **MACA.No.822 OF 2010** -15- 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** bpr **MACA.No.822 OF 2010** -16- ## **APPENDIX** ## **APPELLANT'S/PETITIONER'S EXHIBITS:** **ANNEXURE A1 COPY OF MEDICAL BILL NO. 003405 ISSUED BY COCHIN HOSPITAL DATED 18.12.2009. ANNEXURE A2 COPY OF MEDICAL BILL NO. 047985 ISSUED BY COCHIN HOSPITAL DATED 10.01.2010. ANNEXURE A3 COPY OF MEDICAL BILL NO. S.129750 ISSUED BY M.G.MEDICALS DATED 12.01.2010. ANNEXURE A4 COPY OF MEDICAL BILL NO. S.132282 ISSUED BY M.G.MEDICALS DATED 18.01.2010. ANNEXURE A5 COPY OF MEDICAL BILL NO. S.136100 ISSUED BY M.G.MEDICALS DATED 27.01.2010. ANNEXURE A6 COPY OF MEDICAL BILL NO. S.136094 ISSUED BY M.G.MEDICALS DATED 27.01.2010. ANNEXURE A7 COPY OF MEDICAL BILL NO. 067267 ISSUED BY COCHIN HOSPITAL DATED 27.01.2010. ANNEXURE A8 COPY OF MEDICAL BILL NO. S.155035 ISSUED BY M.G.MEDICALS DATED 12.03.2010. ANNEXURE A9 COPY OF MEDICAL BILL NO. 055969 ISSUED BY COCHIN HOSPITAL DATED 12.03.2010. ANNEXURE A10 COPY OF MEDICAL BILL NO. S.162828 ISSUED BY M.G.MEDICALS DATED 30.03.2010. ANNEXURE A11 COPY OF MEDICAL BILL NO. S.2150 ISSUED BY M.G.MEDICALS DATED 07.04.2010. ANNEXURE A12 COPY OF MEDICAL BILL NO. S.4831 ISSUED BY M.G.MEDICALS DATED 13.04.2010. ANNEXURE A13 COPY OF MEDICAL BILL NO. S.4838 ISSUED BY M.G.MEDICALS DATED 13.04.2010.** **MACA.No.822 OF 2010** -17- - **ANNEXURE A14 COPY OF MEDICAL BILL NO. S.13206 ISSUED BY M.G.MEDICALS DATED 03.05.2010.** - **ANNEXURE A15 COPY OF MEDICAL BILL NO. 004463 ISSUED BY COCHIN HOSPITAL DATED 03.05.2010.** - **ANNEXURE A16 COPY OF MEDICAL BILL NO. 004426 ISSUED BY COCHIN HOSPITAL DATED 03.05.2010.** - **ANNEXURE A17 COPY OF MEDICAL BILL NO. S.15823 ISSUED BY M.G.MEDICALS DATED 09.05.2010.** - **ANNEXURE A18 COPY OF MEDICAL BILL NO. S.19294 ISSUED BY M.G.MEDICALS DATED 17.05.2010.** - **ANNEXURE A19 COPY OF MEDICAL BILL NO. S.008595 ISSUED BY COCHIN HOSPITAL DATED 31.05.2010.** - **ANNEXURE A20 COPY OF MEDICAL BILL NO. S.38412 ISSUED BY COCHIN HOSPITAL DATED 01.07.2010.** - **ANNEXURE A21 COPY OF MEDICAL BILL NO. S.48488 ISSUED BY M.G.MEDICALS DATED 24.07.2010.** - **ANNEXURE A22 COPY OF MEDICAL BILL NO. 017860 ISSUED BY COCHIN HOSPITAL DATED 24.07.2010.** - **ANNEXURE A23 COPY OF MEDICAL BILL NO. A113840/0 ISSUED BY DDRC PIRAMAL DIAGNOSTIC SERVICES DATED 26.07.2010.** - **ANNEXURE A24 COPY OF MEDICAL BILL NO. S.65715 ISSUED BY M.G.MEDICALS DATED 31.08.2010.** - **ANNEXURE A25 COPY OF MEDICAL BILL NO. 1783 ISSUED BY ENJAKUDY MEDICALS DATED 14.09.2010.** - **ANNEXURE A26 COPY OF MEDICAL BILL NO. 1554 ISSUED BY ENJAKUDY MEDICALS DATED 16.09.2010.** - **ANNEXURE A27 COPY OF MEDICAL BILL NO. 1891 ISSUED BY ENJAKUDY MEDICALS DATED 23.09.2010** - **ANNEXURE A28 COPY OF MEDICAL BILL NO. 15811 ISSUED BY SASTHA MEDICALS DATED 30.09.2010.** ## **MACA.No.822 OF 2010** -18- - **ANNEXURE A29 COPY OF MEDICAL BILL NO. 2171 ISSUED BY ENJAKUDY MEDICALS DATED 05.10.2010.** - **ANNEXURE A30 COPY OF MEDICAL BILL NO. 2192 ISSUED BY ENJAKUDY MEDICALS DATED 06.10.2010.** - **ANNEXURE A31 COPY OF MEDICAL BILL NO.S. 84864 ISSUED BY M.G. MEDICALS DATED 12.10.2010.** - **ANNEXURE A32 COPY OF MEDICAL BILL NO. 223419 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 29.10.2010.** - **ANNEXURE A33 COPY OF MEDICAL BILL NO. 226251 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 05.11.2010.** - **ANNEXURE A34 COPY OF MEDICAL BILL NO.236506 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 01.12.2010.** - **ANNEXURE A35 COPY OF MEDICAL BILL NO. 21129 ISSUED BY SASTHA MEDICALS DATED 13.12.2010.** - **ANNEXURE A36 COPY OF MEDICAL BILL NO. 21951 ISSUED BY SASTHA MEDICALS DATED 24.12.2010.** - **ANNEXURE A37 COPY OF MEDICAL BILL NO. 259442 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 28.01.2011.** - **ANNEXURE A38 COPY OF MEDICAL BILL NO. 261302 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 02.02.2011.** - **ANNEXURE A39 COPY OF MEDICAL BILL NO. 25295 ISSUED BY SASTHA MEDICALS DATED 09.02.2011.** - **ANNEXURE A40 COPY OF MEDICAL BILL NO. 272804 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 02.03.2011.** - **ANNEXURE A41 COPY OF MEDICAL BILL NO. 272805 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 02.03.2011.** - **ANNEXURE A42 COPY OF MEDICAL BILL NO. 26741 ISSUED BY SASTHA MEDICALS DATED 02.03.2011.** **MACA.No.822 OF 2010** -19- **ANNEXURE A43 COPY OF MEDICAL BILL NO. 27591 ISSUED BY SASTHA MEDICALS DATED 15.03.2011.** - **ANNEXURE A44 COPY OF MEDICAL BILL NO. S. 5764 ISSUED BY THOMSON MEDICALS DATED 10.05.2011.** - **ANNEXURE A45 COPY OF MEDICAL BILL NO. 303812 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 27.05.2011.** - **ANNEXURE A46 COPY OF MEDICAL BILL NO. 314512 ISSUED BY NAJATH SUPER SPECIALTY HOSPITAL MEDICALS DATED 25.06.2011.** - **ANNEXURE A47 COPY OF MEDICAL BILL NO.114573 ISSUED BY SEVANA MEDICINES DATED 12.07.2011.** - **ANNEXURE A48 COPY OF MEDICAL BILL NO. 8589 ISSUED BY SAHAYA MEDICALS DATED 26.07.2011.** - **ANNEXURE A49 COPY OF MEDICAL BILL NO.8157 ISSUED BY SASTHA MEDICALS DATED 02.09.2011.** - **ANNEXURE A50 COPY OF MEDICAL BILL NO. 19776 ISSUED BY SEVANA MEDICINES DATED 27.09.2011.** - **ANNEXURE A51 COPY OF MEDICAL BILL NO. 228504 ISSUED BY SEVANA MEDICALS DATED 25.10.2011.** - **RESPONDENTS EXHIBITS : NIL**