Sudhakaran v. Madhavan and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941** ## **MACA.No.1739 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.606/2002 DATED 26-04-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANT/PETITIONER:** **SUDHAKARAN, S/O CHAMY, RESIDING AT PARAMPALLAM HOUSE, P.O.KAIRADI, AYILOOR (VIA), PALAKKAD DISTRICT.** **BY ADV.SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** |**1**|**MADHAVAN,**| |---|---| ||**S/O CHINNAN, KARAPPARA ESTATE, 7/446,**| ||**PADAGIRI, NELLIYAMPATHI, PALAKKAD.**| |**2**|**MANOJ**| ||**S/O MADHAVAN, RESIDING AT AYILOOR,**| ||**MOOLA HOUSE,**| ||**P.O.AYILOOR, PALAKKAD.**| |**3**|**THE UNITED INDIA INSURANCE COMPANY LIMITED,**| ||**I.G.TOWER, NEAR BUS STAND, MAIN ROAD,**| ||**NEMMARA, PALAKKAD DISTRICT.**| **R3 BY ADV. SRI.K.SANDESH RAJA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1739 OF 2009** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.606 of 2002 on the file of the Motor Accidents Claims Tribunal, Palakkad, 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 14.11.1999, while he was travelling in a motorcycle bearing registration No.TNG-5302, as pillion rider. At the place of accident, the motorcycle was hit by a jeep bearing registration No.KLI/7374, owned by the 1[st] respondent, driven 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 driving of the offending jeep by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,70,000/-, under various heads, which was limited to Rs.2,50,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer **MACA.No.1739 OF 2009** -3- filed written statement admitting the insurance coverage of the offending jeep; however, denying negligence alleged against the 2[nd] respondent driver. The insurer contended that the accident occurred due to the rash and negligent driving of the motorcycle on which the appellant/claimant was travelling as pillion 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. 3. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. A copy of the charge sheet was marked as Ext.B1 on the side of the respondents. 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 offending jeep by the 2[nd] respondent driver. Since insurance coverage of the said vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.38,316/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 04.06.2002 till realisation, with a cost of Rs.300/- and the insurer was directed to satisfy the award. **MACA.No.1739 OF 2009** -4- 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. By the order dated 25.07.2019, the Superintendent of the District Hospital, Palakkad was directed to constitute a Medical Board to assess permanent disability, if any, of the appellant. Pursuant to that order, the appellant appeared before the Special Medical Board on 17.08.2019. The Special Medical Board at the District Hospital, Palakkad assessed the permanent whole body disability of the appellant as 10% and a copy of the disability certificate is placed on record, along with a letter dated 05.10.2019 of the Superintendent of the District Hospital, Palakkad. 7. On 30.10.2019, when this appeal was taken up for consideration, the Registry was directed to give a copy of the disability certificate issued by the Special Medical Board, District Hospital, Palakkad, to the learned counsel for the appellant and also to the learned Standing Counsel for the 3[rd] respondent insurer. 8. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] **MACA.No.1739 OF 2009** -5- respondent/insurer. 9. 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. 10. 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. 11. 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 **MACA.No.1739 OF 2009** -6- 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. 12. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; ||Heads of claim|Amount claimed|Amount allowed| |---|---|---|---| |1|Loss of earning|60,000/-|6,000/-| |2|Transportation|4,000/-|3,000/-| |3|Extra nourishment|4,000/-|1,500/-| |4|Damage to clothing|1,000/-|500/-| |5|Medical expenses|10,000/-|1,316/-| |6|Future medical expenses|7,000/-|-nil-| |7|Bystander's expenses|4,000/-|4,000/-| |8|Pain and suffering|15,000/-|18,000/-| |9|Permanent disability|1,00,000/-|-nil-| |10|Loss of amenities|15,000/-|4,000/-| |11|Loss of earning power|50,000/-|-nil-| ||Total claim|**2,70,000/-**|**38,316/-**| 13. The accident occurred on 14.11.1999. At the time **MACA.No.1739 OF 2009** -7- of accident, the appellant was aged 30 years. The appellant claimed a monthly income of Rs.5,000/- as Aluminium Fabrication Worker. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, for the purpose of assessing compensation under various heads. 14. 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 **MACA.No.1739 OF 2009** -8- 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. 15. 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. **MACA.No.1739 OF 2009** -9- 16. In the absence of any reliable evidence, 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, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.2,250/(since the accident occurred in November 1999), for the purpose of assessing compensation under various heads. 17. As per Ext.A4 wound certificate, the appellant had sustained lacerated injury (R) leg on its anterior part 3 x 1 x 0.5 cm with haematoma; fracture of both bones (L) leg; small abrasion on the right foot; and lacerated injury right upper arm and near the axilla anterially 2.5 x 2 x 0.1 cm. The document marked as Ext.A4 is the wound certificate. Ext.A5 is the reference card. The appellant had undergone inpatient treatment for a period of 42 days. Ext.A8 series of medical bills are for a sum of Rs.1,315.98/-. 18. In Ext.A7 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 15%. The Tribunal did not accept the percentage of permanent disability, as **MACA.No.1739 OF 2009** -10- assessed in Ext.A7. Now, pursuant to the order of this Court dated 25.07.2019, the Special Medical Board at the District Hospital, Palakkad has filed a report assessing the percentage of permanent whole body disability as 10%. 19. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,500/- 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 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,250/-, the compensation under the head loss of earning is re-fixed as Rs.11,250/- (2,250 x 5), resulting an additional compensation of **Rs.5,250/-** (11,250 - 6,000). 20. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 42 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,000/-. 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 represents just and reasonable **MACA.No.1739 OF 2009** -11- compensation, which requires no enhancement in this appeal. 21. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 1999 and the appellant had undergone inpatient treatment for 42 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 extra nourishment is re-fixed as Rs.4,200/- (100 x 42), resulting an additional compensation of **Rs.2,700/-** (4,200 - 1,500) under this head. 22. Towards bystander expenses, the Tribunal awarded a sum of Rs.4,000/-. The compensation under the head bystander expenses is re-fixed as Rs.6,300/- (150 x 42), resulting an additional compensation of **Rs.2,300/-** (6,300 - 4,000). 23. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. Considering the fact that the accident is of the year 1999, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.250/-** (750 - 500). 24. Towards medical expenses, the Tribunal awarded a **MACA.No.1739 OF 2009** -12- sum of Rs.1,316/-, covered by Ext.A8 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. 25. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.18,000/-. 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. 26. 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 **MACA.No.1739 OF 2009** -13- **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. 27. 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. 28. In the instant case, as on the date of accident, the appellant was aged 30 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 **MACA.No.1739 OF 2009** -14- Tribunal is correct and proper. 29. The Tribunal awarded no amount towards permanent disability. Since the monthly income of the appellant is re-fixed notionally as Rs.2,250/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability assessed by the Special Medical Board as 10%, this Court deem it appropriate to grant **Rs.45,900/-** (2,250 x 12 x 17 x 10/100) as compensation under the head permanent disability. 30. Towards loss of amenities, the Tribunal awarded a sum of Rs.4,000/-. Considering the nature of injuries sustained and the permanent disability that had arisen out of those injuries, assessed as 10% by the Special Medical Board in its certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.6,000/-** (10,000 - 4,000). 31. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.62,400/-** (Rupees sixty two thousand four hundred only) [5,250 + 2,700 + 2,300 + 250 + 45,900 + 6,000] in this appeal, which **MACA.No.1739 OF 2009** -15- 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 Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant shall be 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. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr