Sudheesh @ Sudhi v. Shajan, Abhilash & National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **MACA.No.3934 OF 2019** **AGAINST THE AWARD IN OPMV 804/2016 DATED 28-02-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT:** **SUDHEESH @ SUDHI, AGED 39 YEARS, S/O.SUKUMARAN, CHEERAPARAMBIL HOUSE, P.O.KANDAKULAM DESOM, METHALA, KODUNGALLUR, THRISSUR-680669.** **BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER SMT.V.J.SUMI LIZA** ## **RESPONDENTS:** **1 SHAIJAN, S/O.VELAYUDHAN, NADUVELY HOUSE, P.O.THURAVOOR, ANGAMALY, ERNAKULAM DT., PIN - 683 572. 2 ABHILASH, S/O.SIVASANKARAN, JAYA NIVAS, NADUVATHAPARA, PERINGOTTUKURUSSI, PALAKKAD, PIN - 678 574. 3 NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY BRANCH MANAGER, KORATTY, CHALAKUDY, PIN - 680 308.** ## **SRI LAL GEORGE-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.3934 OF 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.804 of 2016 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 25.03.2016, while he was riding a motorcycle bearing registration No.KL-08/AF-48, as pillion rider. At the place of accident, the motorcycle was hit by a tanker lorry bearing registration No.KL-41/C-5113, 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 lorry by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,05,000/- under various heads, which was limited to Rs.8,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the 1[st] and the 2[nd] respondents remained absent and they were set ex-parte. The 3[rd] 3 MACA No.3934 OF 2019 respondent insurer filed written statement admitting insurance coverage of the offending lorry; however, denying the negligence alleged against the 2[nd] respondent driver. 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. The claim petition was tried along with the connected matter. Exts.A1 to A11 were marked on the side of the claimant. The documents marked as Exts.X1 and X2 are the reports of the Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident. The respondents have not chosen to adduce any oral or documentary evidence. 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 lorry by the 2[nd] respondent driver. Since insurance coverage of the offending 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.7,02,400/-, together with 4 MACA No.3934 OF 2019 interest at the rate of 8% per annum from the date of petition till date of deposit, with proportionate cost and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 11.10.2019. 7. 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. 8. 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 5 MACA No.3934 OF 2019 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. 9. 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 6 MACA No.3934 OF 2019 ## equitability. 10. In the instant case, the compensation awarded by ## the Tribunal under various heads reads thus; ||Head of claim|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|1,80,000/-|63,000/-|(9,000x7<br>months)| |2|Transportation<br>expenses|10,000/-|3,000/-|| |3|Extra nourishment|20,000/-|1,500/-|| |4|Damage to clothings|5,000/-|1,000/-|| |5|Attendant expenses|40,000/-|9,100/-|| |6|Medical expenses|3,00,000/-|2,98,000/-|| |7|Pain and suffering|50,000/-|50,000/-|| |8|Loss of amenities|50,000/-|40,000/-|| |9|Loss of permanent<br>disability|1,00,000/-|2,26,800/-|(9,000x 12x 15x<br>14%)| |10|Loss of earning power|50,000/-|Nil|| |11|Disfiguration|Nil|10,000/-|| ||Total|8,05,000/-<br>(Limited to<br>8,00,000/-)|7,02,400/-|Rs.7,02,400/-<br>along with<br>interest @ 8%<br>p.a. from<br>15.07.2016 till<br>realisation| 11. The accident occurred on 25.03.2016. At the time of accident, the appellant was aged 36 years. The appellant claimed a monthly income of Rs.10,000/- as Maison. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not 7 MACA No.3934 OF 2019 chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.9,000/-, for the purpose of assessing compensation under various heads. 12. 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 8 MACA No.3934 OF 2019 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. 13. 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., 9 MACA No.3934 OF 2019 during the year 2016, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the compensation claimed by the appellant/claimant cannot be said to be on a higher side and this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.10,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A7 is the wound certificate and Ext.A8 is the discharge summary. Ext.A9 series of medical bills are for a sum of Rs.2,97,465/-. As per the medical records, the appellant had sustained comminuted distal tibia and fibula fracture with intra articular extension, lacerated wound by 8x2 cm over posterior medial aspect and lacerated wound by 6x1 cm over posterio lateral aspect. He had undergone inpatient treatment for the period from 25.03.2016 to 19.04.2014 and subsequently from 15.07.2016 to 21.07.2016. Ext.A3 discharge summary would show that there is non-union of right distal tibia. 16. In Ext.X2 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account 10 MACA No.3934 OF 2019 of the injuries sustained in the accident, as 14%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.63,000/-, at the rate of Rs.9,000/- per month for a period of 7 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 7 months fixed by the Tribunal for granting loss of earning is re-fixed as 8 months. Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, the compensation under the head loss of earning is re-fixed as Rs.84,000/- (10,500 x 8), resulting an additional compensation of **Rs.21,000/-** (84,000 - 63,000). 18. 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.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out 11 MACA No.3934 OF 2019 from medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses the Tribunal awarded a sum of Rs.9,100/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,500/-. The accident is of the year 2016 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 cannot be said to be on the lower side. The compensation under the head extra nourishment is re-fixed as Rs.4,800/- (150 x 32), resulting an additional compensation of **Rs.3,300/-** (4,800 - 1,500). 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation awarded by the Tribunal under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** (1,500 - 1,000). 12 MACA No.3934 OF 2019 21. Towards medical expenses, the Tribunal awarded a sum of Rs.2,98,000/-, covered by Ext.A9 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. 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 13 MACA No.3934 OF 2019 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. ## 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 36 years. In the light of the decisions of 14 MACA No.3934 OF 2019 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. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.2,26,800/- (9,000 x 12 x 15 x 14/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, applying the multiplier of 15 applicable to the age group of the appellant and the percentage of permanent disability as 14%, the compensation under the head permanent disability is re-fixed as Rs.2,64,600/- (10,500 x 12 x 15 x 14/100), resulting an additional compensation of **Rs.37,800/-** (2,64,600 - 2,26,800). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.40,000/-. In Ext.X2 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 14%. The appellant was a mason and there is shortening of leg. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.X2 disability certificate, 15 MACA No.3934 OF 2019 the compensation awarded by the Tribunal under this head cannot also be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 28. Towards disfiguration, the Tribunal awarded a sum of Rs.10,000/-. The compensation awarded by the Tribunal under this head is just and reasonable, which requires no enhancement in this appeal. 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.62,600/-** (Rupees Sixty Two Thousand Six Hundred only) [21,000 + 3,300 + 500 + 37,800] 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 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 16 MACA No.3934 OF 2019 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** **yd**