Sudha Mohan @ Sudha v. Rajasekharan Nair and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **MACA.No.19 OF 2011** **AGAINST THE AWARD IN O.P.(MV) NO.1562/2002 DATED 29-04-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANT/APPLICANT:** **SUDHA MOHAN @ SUDHA, AGED 43 YEARS, D/O.MADHAVI AMMA, ARCHANA, NEAR RAILWAY STATION, KADAKKAVOOR.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJASEKHARAN NAIR, ARCHANA, T.C.29/1090(1), KULATHINKARA LANE, PALKULANGARA,THIRUVANANTHAPURAM.** - **2 THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO LTD, P.B.NO.552,MALANKARA BUILDING, V.J.T.HALL ROAD,PALAYAM, THIRUVANANTHAPURAM.** - **3 ANOOP.M, ARCHANA, NEAR RAILWAY STATION, KADAKKAVOOR, THIRUVANANTHAUPURAM.** - **4 THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD, T.C.42/82,2ND FLOOR, GOVERNMENT PRESS ROAD,THIRUVANANTHAPURAM.** **R2 BY ADV. SMT.D.GEETHA R2 BY ADV. SMT.K.SHERIN MOHAN R4 BY ADV. SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.19 of 2011 -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV) No.1562 of 2002 on the file of the Motor Accidents Claims Tribunal, Attingal, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 10.04.2005, while she was travelling as pillion rider on a motorcycle bearing registration No.KL-01/K-7843, owned by the 3[rd] respondent and insured with the 4[th] respondent. At the place of accident, the motorcycle was hit by a Maruti car bearing registration No.KL-01/AA-2784 owned by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, she sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of Maruti car by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads. 2. Before the Tribunal, respondents 2 and 4 alone filed a written statement. The 2[nd] respondent insurer of the Maruti car filed written statement admitting insurance coverage of the said vehicle, as on the date of accident; however, denying negligence alleged against its driver. The insurer contended MACA No.19 of 2011 -3- that the accident occurred due to the rash and negligent riding of motorcycle by its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. The 4[th] respondent insurer of the motorcycle filed written statement alleging negligence against the driver of the Maruti car, who was charge sheeted by the Police. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. Both sides has not chosen to adduce any oral evidence. 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 Maruti car driven by one Prasanna Chandran. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] insurer was held liable to indemnify the 1[st] respondent owner. Under various heads, the Tribunal awarded a total compensation of Rs.66,703/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 03.12.2005 till realisation, with a cost of Rs.1,500/-. The 2[nd] respondent MACA No.19 of 2011 -4- 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 respective Standing Counsel for 2[nd] and 4[th] respondent insurers. 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 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 MACA No.19 of 2011 -5- 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 ## the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Loss of earning|4,500/-| |2|Transport to hospital|1,000/-| |3|Extra nourishment|500/-| |4|Damage to clothing and articles|250/-| |5|Medical treatment expenses|6,753/-| MACA No.19 of 2011 -6- |6|Bystander expenses|500/-| |---|---|---| |7|Permanent disability|32,400/-| |8|Loss of amenities and discomforts|10,800/-| |9|Pain and suffering|10,000/-| ||**TOTAL**|**66,703/-**| 12. The accident occurred on 10.04.2005. At the time of accident, the appellant was aged 38 years. She claimed a monthly income of Rs.3,000/- as Tailor. The appellant has also not chosen to mount the box to prove her monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.2,250/-, 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 MACA No.19 of 2011 -7- 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 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.19 of 2011 -8- 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 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.3,000/- 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.A4 is the wound certificate and Ext.A6 is the discharge card. As per medical records, in the accident, the appellant sustained fracture on lateral condylar of left tibia and fracture of both bones of left leg. She had undergone inpatient treatment for a period of 4 days. Ext.A8 series of medical bills are for a sum of Rs.6,753/-. 17. The document marked as Ext.A7 is the disability certificate issued by an individual doctor, in which the permanent whole body disability of the appellant, on account of the injuries sustained in the accident, is assessed as 16%. The said disability certificate was not proved by examining the MACA No.19 of 2011 -9- doctor concerned. The Tribunal, instead of discarding the assessment of disability in Ext.A7 in toto, took the percentage of permanent whole body disability as 8%. The disabilities noted in Ext.A7 are on account of shortening of leg and wasting of muscles. Considering the nature of injuries sustained and the disabilities noted in Ext.A7, the permanent whole body disability of the appellant, for the purpose of awarding compensation under various heads is taken as 10%. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.4,500/-, at the rate of Rs.2,250/- 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 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, the compensation under the head loss of earning is re-fixed as Rs.15,000/- (3,000 x 5), resulting an additional compensation of **Rs.10,500/-** (15,000 - 4,500) 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 4 days. The accident is of the year 2005. Towards transport to hospital, MACA No.19 of 2011 -10- the Tribunal awarded a sum of Rs.1,000/-. 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.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500 - 1,000). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.500/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2005 and the appellant had undergone inpatient treatment for 4 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.600/- (150 x 4), resulting an additional compensation of **Rs.100/-** (600 - 500). The compensation awarded by the Tribunal under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2005, the compensation under this MACA No.19 of 2011 -11- head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.500/-** (750 -250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.6,753/-, covered by Ext.A8 series of medical bills. Though Ext.A8 series of medical bills are for a sum of Rs.12,133.96, the Tribunal noticed discrepancies in certain bills. The Tribunal deducted a sum of Rs.5,381/- covered by the disputed bills and awarded the balance amount of Rs.6,753/-. In the absence of any further medical bills, the appellant is not entitled for enhancement of the compensation under this head. 23. 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.25,000/-, resulting an additional compensation of **Rs.15,000/-** (25,000 - 10,000). 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]** , MACA No.19 of 2011 -12- **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 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 paragraph 42 of the said judgment. MACA No.19 of 2011 -13- 26. In the instant case, as on the date of accident, the appellant was aged 38 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 correct and proper. 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.32,400/- (2,250 x 12 x 15 x 8/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,000/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.54,000/- (3,000 x 12 x 15 x 10/100), resulting an additional compensation of **Rs.21,600/-** (54,000 - 32,400). 28. Towards loss of amenities and discomforts, the Tribunal awarded a sum of Rs.10,800/-. Considering the nature of injuries sustained and 10% permanent disability on account of those injuries, as taken by this Court, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. MACA No.19 of 2011 -14- 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.49,200/-** (Rupees forty nine thousand two hundred only) [10,500 + 1,500 + 100 + 500 + 15,000 + 21,600] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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.D1-62475/2016 dated 07.11.2019. The appellant shall provide her 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 MACA No.19 of 2011 -15- ## judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr