Sunil P.V. v. Sulochana, Ajay @ Saji and The Manager National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **MACA.No.663 OF 2010** **AGAINST THE AWARD IN OPMV 335/2005 DATED 30-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA** ## **APPELLANT / PETITIONER :** **SUNIL.P.V, S/O.PAYYANIPARAMBIL VIKRAMAN, NEAR ST.JAMES HOSPITAL, CHALAKUDY P.O.** **BY ADVS. SRI.V.BINOY RAM SRI.VINOD.V (EDAPPUNATHIL)** ## **RESPONDENTS/RESPONDENTS :** **1 SULOCHANA, W/O.ANTIVILA VIDHYASAGAR, NEERAZHI LANE, ULLOOR, THIRUVANANTHAPURAM DIST. 2 AJAY @ SAJI S/O. CHERUKUNNATH RAMACHANDRAN NAIR, KALLAMPALLY DESOM, MEDICAL, COLLEGE HOSPITAL P.O., THIRUVANANTHAPURAM. 3 THE MANAGER NATIONAL INSURANCE CO. LTD., SRI RAM SITE OFFICE, 2A, PRAKASOM ROAD, T.NAGAR, CHENNAI.** **R3 BY SRI.LAL GEORGE, SC, NATIONAL INSURANCE CO.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.663 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.335 of 2005 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 05.11.2004, while he was travelling on a scooter bearing registration No.KL-8/X-7685, as pillion rider. At the place of accident, the said scooter was hit by a tempo bearing registration No.KL-04/2963 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. As a result of the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of tempo by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed a written statement admitting the insurance **MACA.No.663 OF 2010** **3** coverage of the offending vehicle. It was contended that the 2[nd] respondent had no licence and badge at the time of the accident. 3. Before the Tribunal, the claim petition was tried along with O.P(MV)No.337 of 2006 arising out of the very same accident. Exts.A1 to A9 were marked on the side of the claimants. On the side of the 3[rd] respondent, Exts.B1 and B2 were marked. Both sides have not chosen to adduce any oral 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 offending vehicle by the 2[nd] respondent driver. Since the 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.1,41,700/-, and the insurer was directed to satisfy the award, with interest at the rate of 7% per annum from the date of petition till realisation, together with proportionate cost. **MACA.No.663 OF 2010** **4** 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. 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 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 **MACA.No.663 OF 2010** **5** 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 equitability. 10. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head|Amount allowed| |---|---|---| |1|Medical expenses|90,300/-| |2|Hospital expenses|2,000/-| **MACA.No.663 OF 2010** **6** |3|Transportation expenses|1,000/-| |---|---|---| |4|Loss of income|8,000/-<br>(2000x4)| |5|Pain and sufferings|15,000/-| |6|Discomfort and loss of amenities|5,000/-| |7|Disability compensation|20,400/-<br>(2000x12x17x5/100)| ||**Total**|**1,41,700/-**| 11. The accident occurred on 05.11.2004. At the time of accident, the appellant was aged 26 years. He claimed a monthly income of Rs.3,500/- as a Barber-cum-Beautician. No documents were produced before the Tribunal to prove the job or income of the appellant. He has also not chosen to mount the box. In the absence of any materials, the Tribunal fixed the monthly income notionally as Rs.2,000/-, 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 **MACA.No.663 OF 2010** **7** 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 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 **MACA.No.663 OF 2010** **8** 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 2004, 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.3,500/-, as claimed in the claim petition, for the purpose of assessing compensation under various heads. 15. As per Ext.A3 wound certificate and Ext.A4 discharge card, the appellant had undergone inpatient treatment in Aswani Hospital, Thrissur for 20 days. He had **MACA.No.663 OF 2010** **9** sustained abrasion over the right forehead above the right eye, above the upper lip, over the right knee, right leg and right foot and investigation revealed fracture of right femur. In Ext.A5 the disability certificate, the permanent disability of the appellant is certified as 12% on account of loss of muscle strength, ankylosis, etc. The said certificate was not proved by examining the doctor. The Tribunal noticed that the limb disability certified in Ext.A5 will have to be converted into whole body disability. Accordingly the Tribunal fixed the whole body disability as 5%, by converting the limb disability to whole body disability on the usual ratio of 35 to 40%. The procedure adopted by the Tribunal in this regard cannot be said to be arbitrary or illegal, warranting interference in this appeal. 16. Towards loss of income, the Tribunal awarded a sum of Rs.8,000/-, at the rate of Rs.2,000/- 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 income is re-fixed **MACA.No.663 OF 2010** **10** as 5 months. Since the monthly income of the appellant is also re-fixed notionally as Rs.3,500/-, the compensation under the head loss of income is re-fixed as Rs.17,500/(3,500x5), resulting an additional compensation of **Rs.9,500/-** (17,500-8,000). 17. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-, which represents just and reasonable compensation and requires no enhancement in this appeal. 18. Towards, bystander's expenses, no amount has been awarded by the Tribunal. Considering the fact that the appellant had undergone inpatient treatment a period of 20 days, this Court deem it appropriate to grant a sum of Rs.3,000/(150x20) towards bystander's expenses. Similarly, no amount has been awarded by the Tribunal towards extra nourishment. Considering the nature of injuries sustained by the appellant and also the treatment he had undergone, a sum of Rs.2,000/- (100x20) is granted towards extra nourishment. Therefore, under these heads, the appellant is entitled for a total compensation of **MACA.No.663 OF 2010** **11** **Rs.5,000/-** (3,000+2,000). 19. Towards medical expenses, the Tribunal awarded a sum of Rs.90,300/-, based on Ext.A3 bills and vouchers, after deducting an amount of Rs.10,336/- since the same was not proved. The compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards pain and sufferings, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the 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. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained by the appellant and also the permanent disability on account of those injuries, accepted as 5% by the Tribunal, the compensation under this head is re-fixed as **MACA.No.663 OF 2010** **12** Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** . ## 22. 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], 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 **MACA.No.663 OF 2010** **13** 61 to 65 years and multiplier of **5** for 66 to 70 years. 23. 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. 24. In the instant case, as on the date of accident, the appellant was aged 26 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 correct and proper. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.20,400/- (2,000x12x17x 5/100). Since the monthly income of the appellant is refixed notionally as Rs.3,500/-, the compensation under this head is re-fixed as Rs.35,700/- (3,500x12x17x5/100), resulting an additional compensation of **Rs.15,300/-** (35,700-20,400). 26. In the result, the appellant will be entitled for an **MACA.No.663 OF 2010** **14** additional compensation of **Rs.34,800/-** (Rupees Thirty four thousand and eight hundred only) [9,500 + 5,000 + 5,000 +15,300] 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. This appeal is disposed of as above. No order as to costs. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/25/10