Sukumaran Kudilil House v. P.K. Surendran, Abhilash and United India Insurance Company (MACA No. 890 of 2008)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.890 OF 2008** **AGAINST THE AWARD IN OPMV 2328/2001 DATED 29-07-2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **SUKUMARAN KUDILIL HOUSE, KUMARAKAM, KOTTAYAM.** **BY ADVS. SRI.B.PREMOD SRI.RENY ANTONY** ## **RESPONDENTS/RESPONDENTS:** |**1**|**P.K.SURENDRAN, S/O.KRISHNAN,**| |---|---| ||**PADINJAREKAROT HOUSE, CHANNANIKKAD P.O.**| |**2**|**ABHILASH, S/O. VISWAMBARAN**| ||**PUTHENPARAMBIL HOUSE, VARAMBINAKAM,**| ||**PARIPPU P.O., AYMANAM VILLAGE, KOTTAYAM.**| |**3**|**UNITED INDIA INSURANCE COMPANY**| ||**KOTTAYAM.**| **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.890 OF 2008** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2328 of 2001 on the file of the Motor Accidents Claims Tribunal, Kottayam, which is 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 27.9.2001, while he was walking along the side of a public road. At the place of accident, the appellant was knocked down by an autorickshaw bearing registration No.KRE/2963 owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorikshaw by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,21,500/-, under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the owner and driver of the offending vehicle remained absent and they were set ex-parte. **MACA.No.890 OF 2008** 3 3. The 3[rd] respondent/insurer filed written statement disputing the liability. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the autorikshaw was marked as Ext.B1. The appellant and another were examined as PWs 1 and 2. The respondents have 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 the autorikshaw by its driver. The Tribunal found that the appellant/claimant was not a gratuitous passenger, as contended by the insurer, and he was a pedestrian, who was knocked down by the offending vehicle. Therefore, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.74,693/-, together with interest at the rate of 6% per annum from the date of petition till date of realisation, with proportionate cost. 6. Dissatisfied with the quantum of compensation **MACA.No.890 OF 2008** 4 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 the insurance coverage of the offending vehicle is not in dispute, service of notice on respondents 1 and 2 was dispensed with, by the order of this Court dated 15.10.2019. 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 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 **MACA.No.890 OF 2008** 5 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. The accident occurred on 27.9.2001. At the time of accident, the appellant was aged 54 years. He claimed a monthly income of Rs.6,000/- as a tailor, who was examined as PW1. 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. **MACA.No.890 OF 2008** 6 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 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** **MACA.No.890 OF 2008** 7 **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., during the year 2001, taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, and also the evidence of the appellant as PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.3,500/-, for the purpose of assessing **MACA.No.890 OF 2008** 8 compensation under various heads. 15. The compensation awarded by the Tribunal under various heads are as follows: Medical Expenses Rs.8,193/Bystander's expense and extra Rs.3,000/nourishment Transportation to hospital and damage Rs.2,000/to clothing Loss of earning (1500x6) Rs.9,000/Pain and suffering Rs.12,500/Injury compensation Rs.12,500/Disability compensation Rs.20,000/Loss of amenities Rs.7,500/Total **Rs.74,693/-** 16. Ext.A6 is the wound certificate issued from Medical College Hospital, Kottayam. The appellant sustained Type III compound both bones fracture of left leg with degloving injury of soft tissue. He was treated by wound debridement, external fixators and by antibiotics and other supporting medicines. Subsequently he underwent split skin grafting and was put on 'AK' POP slab for six months. He developed non-union of the fracture site and thereafter underwent surgeries (ORIF) with plate osteosonthesis. Bone grafting was also done to contain the fracture injury. He was thereafter put on AK POP cast followed by **MACA.No.890 OF 2008** 9 ROP. Tibia sustained condylar segment fracture. Ext.A7 series are the discharge cards. He remained under inpatient treatment for a period of 90 days in four different spells. 17. In Ext.A8 disability certificate, the doctor who treated the appellant, certified the permanent disability, on account of the injuries sustained in the accident, as 25%. As per Ext.A8 disability certificate, the appellant walks with support and there is 3cm shortening of his left leg. There is 30 degree ankylosis and mal-union at the fracture sight. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.9,000/-, at the rate of Rs.1,500/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, and taking note of the fact that the appellant is a tailor by profession, the period of 6 months fixed by the Tribunal for granting loss of earning is refixed as 10 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.35,000/- (3,500 x 10), resulting an additional compensation of **Rs.26,000/-** (35,000 - 9,000). **MACA.No.890 OF 2008** 10 19. Towards transportation to hospital and damage to clothing, the Tribunal awarded a sum of Rs.2,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, in four different spells, as borne out from medical records, the compensation awarded by the Tribunal under this head is re-fixed as Rs.5,000/-, resulting an additional compensation of **Rs.3,000/-** (5,000 - 2,000) under these heads. 20. Towards bystander's expense and extra nourishment, the Tribunal awarded a sum of Rs.3,000/-. Considering the fact that the appellant had undergone inpatient treatment a period of 90 days, this Court deem it appropriate to refix the compensation under the head bystander's expense as Rs.13,500/- (150 x 90) and that under the head extra nourishment as Rs.9,000/- (100 x 90). Therefore, the total compensation under the heads bystander's expense and extra nourishment is re-fixed as Rs.22,500/- (13,500 + 9,000), resulting an additional compensation of **Rs.19,500/-** (22,500 - 3,000). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.8,193/-, covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation awarded **MACA.No.890 OF 2008** 11 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.12,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, which includes four surgeries, as borne out from medical records, the compensation awarded by the Tribunal under this head is refixed as Rs.17,500/-, resulting an additional compensation of **Rs.5,000/-** (17,500 - 12,500). 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 15 to 20 and 21 to 25 years], **MACA.No.890 OF 2008** 12 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 54 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 **11** applied by the Tribunal is correct and proper. 26. Towards compensation for disability, the Tribunal awarded a consolidated amount of Rs.20,000/-. The Tribunal did **MACA.No.890 OF 2008** 13 not accept the percentage of permanent disability assessed in Ext.A8 on the ground that the doctor was not examined. In the award, the Tribunal noticed that Ext.A8 disability certificate is one issued by the doctor who treated the appellant. As per Ext.A8 disability certificate, the appellant walks with support and there is 3cm shortening of his left leg. There is 30 degree ankylosis and mal-union at the fracture sight. Considering the fact that, at the time of accident, the appellant was a tailor, this Court deem it appropriate to take the percentage of permanent disability of the appellant as 15%, for the purpose of assessing disability compensation and loss of amenities. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head disability is re-fixed as Rs.69,300/(3,500 x 12 x 11 x 15/100), resulting an additional compensation of **Rs.49,300/-** (69,300 - 20,000). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.7,500/-. Considering the nature of injuries sustained and the permanent disability of the appellant, on account of the injuries sustained, certified in Ext.A8 disability certificate, which is accepted as 15%, the compensation awarded by the Tribunal **MACA.No.890 OF 2008** 14 under this head is refixed as Rs.15,000/-, resulting an additional compensation of **Rs.7,500/-** (15,000 - 7,500). In the result, the appellant will be entitled for an additional compensation of **Rs.1,10,800/-** (Rupees One lakh ten thousand and eight hundred only) [26,000 + 3,000 + 5,000 + 69,300 + 7,500] 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 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** jv ## **JUDGE**