Sunil Kumar P.V. v. T. Abdul Latheef, M.P. Suresh Babu and National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 14TH DAY OF NOVEMBER 2019 / 23RD KARTHIKA, 1941** **MACA.No.2237 OF 2007** **AGAINST THE AWARD IN OPMV 1353/1995 DATED 09-03-2006 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/S:** **SUNIL KUMAR.P.V. AGED 32 YEARS, RESIDING AT PADINJHARE VEETTIL,, OLAVANNA AMSOM AND DESOM OF KOZHIKODE TALUK.** **BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT/S:** |**1**|**T.ABDUL LATHEEF**| |---|---| ||**AGED 32 YEARS, RESIDING AT THARAMMAL HOUSE,,**| ||**OLAVANNA AMSOM AND DESOM OF KOZHIKODE TALUK.,**| ||**(DRIVER OF THE MOTOR BUS NO.KLH 951-DL,**| ||**NO.6057/91-D, BADGE NO.2250/93)**| |**2**|**M.P.SURESH BABU FATHERS NAME AND**| ||**AGE NOT KNOWN TO THE COMPLAINANT, RESIDING AT,**| ||**PARUTHIPAL HOUSE, MATHARA P.O.,**| ||**GURUVAYOORAPPAN, COLLEGE, KOZHIKODE TALUK.,**| ||**(R.C.OWNER OF THE MOTOR BUS NO. KLH 951)**| |**3**|**MS.NATIONAL INSURANCE COMPANY LIMITED**| ||**JAIL ROAD, KOZHIKODE-673 002,, (INSURER OF THE**| ||**MOTOR BUS NO. KLH 951-, POLICY**| ||**NO.570301/31/63/94/08898 C NO.IZ400/26691,**| ||**FROM 22/12/1994 TO 21.12.1995)**| -2- MACA. No. 2237 of 2007 ## **OTHER PRESENT:** ## **SRI LAL GEORGE- STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 2237 of 2007 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1353 of 1995 on the file of the Additional Motor Accidents Claims TribunalII, Kozhikode, 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 14.01.1995, while he was travelling on a motorcycle bearing registration No.KEZ-3488, as pillion rider. At the place of accident, the motorcycle was hit by a bus bearing registration No.KLH-951 driven by the 1[st] respondent, owned 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 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, the 1[st] respondent driver did -4- MACA. No. 2237 of 2007 not enter appearance. The 2[nd] respondent owner filed written statement denying negligence alleged against the 1[st] respondent driver. It was contended that the accident occurred due to the negligence on the part of the rider of the motorcycle, on which the appellant was travelling as a pillion rider. 3. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the bus involved in the accident; however, denying the negligence alleged against the 1[st] 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. 4. Before the Tribunal, Exts.A1 to A12 were marked on the side of the appellant/claimant and he was examined as PW1. The case records from the Medical College Hospital was marked as Ext.X1 and the document marked as Ext.C1 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 motor accident. -5- MACA. No. 2237 of 2007 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 offending bus by the 1[st] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,12,140/-, together with interest at the rate of 9% per annum from the date of petition with cost of Rs.1,500/- and the 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 learned Standing Counsel for the 3[rd] respondent insurer. 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 -6- MACA. No. 2237 of 2007 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 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 -7- MACA. No. 2237 of 2007 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; |Head of claim|Amount<br>allowed|| |---|---|---| |Disability|58140|1,500 x 12 x 17<br>x 19/100| |Pain and suffering|20000|| |Loss of income|6000|| |Other eligible counts|2000|| |Medical expenses|14000|| |Loss of amenities|12000|| |**Total**|**1,12,140/-**|| 12. The accident occurred on 14.01.1995. At the time of accident, the appellant was aged 24 years. The appellant claimed a monthly income of Rs.2,500/- as a carpenter. The appellant was examined as PW1. No materials were produced -8- MACA. No. 2237 of 2007 before the Tribunal to prove the monthly income of the appellant. 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. ## 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 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 -9- MACA. No. 2237 of 2007 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 -10- MACA. No. 2237 of 2007 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 1995, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra and also the evidence of PW1, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.1,750/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A4 series is the index cards. Ext.A5 is the reference card issued by the Kozhikide District Co-operative Hospital. Ext.A6 series are out patient tickets from the Medical College Hospital, Kozhikode. Ext.A7 medical bills are for a sum of Rs.14,000/-. As per medical records, the appellant sustained Grade III compound fracture both bone right leg, fracture both bone right forearm. He had undergone inpatient treatment from 16.04.1996 to 18.04.1996. The discharge card shows putting in POP case, -11- MACA. No. 2237 of 2007 grafting of fracture radius, etc. and inpatient treatment for a period of one month from 14.01.1995 to 13.02.1995. 17. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 19%. 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 income, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.1,500/- per month 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 just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.1,750/-, the compensation under the head loss of earning is re-fixed as Rs.7,000/- (1,750 x 4), resulting an additional compensation of **Rs.1,000/-** (7,000 - 6,000). -12- MACA. No. 2237 of 2007 19. Towards other eligible counts the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 1995 and the appellant had undergone inpatient treatment for 33 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's expenses is re-fixed as Rs.4,125/- (125 x 33); extra nourishment as Rs.2,475/- (75 x 33); and damage to clothing as Rs.750/-, resulting an additional compensation of **Rs.5,350/-** [(4,125 + 2,475 + 750) - 2,000] under the head other eligible counts. 20. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. 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. 21. In **Sarla Verma v. Delhi Transport Corporation** -13- MACA. No. 2237 of 2007 **[(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], 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. 22. In **National Insurance Company Ltd. v. Pranay** -14- MACA. No. 2237 of 2007 **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. 23. In the instant case, as on the date of accident, the appellant was aged 24 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 Tribunal is not correct and and the proper multiplier to be applied is **18** . 24. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.58,140/- (1,500 x 12 x 17 x 19/100). Since the monthly income of the appellant is re-fixed notionally as Rs.1,750/-, applying the multiple of 18 applicable to the age group of the appellant and the percentage of permanent disability as 19%, the compensation under the head permanent disability is re-fixed as Rs.71,820/- -15- MACA. No. 2237 of 2007 (1,750 x 12 x 18 x 19/100), resulting an additional compensation of **Rs.13,680/-** ( 71,820 - 58,140) under this head. 25. Towards loss of amenities the Tribunal awarded a sum of Rs.12,000/-. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 19%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.8,000** /- (20,000 - 12,000) under this head. 26. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.28,030/-** (Rupees twenty eight thousand and thirty only) [1,000 + 5,350 + 13,680 + 8,000] 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 -16- MACA. No. 2237 of 2007 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 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** das