Thankachan v. Sabu John and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **MACA.No.3176 OF 2014** **AGAINST THE AWARD IN OP(MV)NO.1116/2012 DATED 24-05-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **THANKACHAN, S/O.MADHAVAN, POOVATHANIYIL HOUSE, VELLIKULAM KARA, TEEKOY VILLAGE.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** ## **RESPONDENTS/RESPONDENTS:** **1 SABU JOHN, S/O.JOHN, VAYALLKUNNEL HOUSE, VELLIKULAM POST-688 580.** **2 THE MANAGER, NATIONAL INSURANCE CO. LTD., PALA BRANCH-688 575.** ## **R2 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3176 OF 2014** -2- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1116 of 2012 on the file of the Motor Accidents Claims Tribunal, Pala, 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 22.05.2012, while he was travelling as a passenger in an autorickshaw bearing registration No.KL-35/C-2705 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the 1[st] respondent lost control over the vehicle, which capsized. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,71,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent remained absent and he was set ex-parte. 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the autorickshaw involved **MACA.No.3176 OF 2014** -3- in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cum-driver. The insurer contended that at the time of accident, the vehicle was not having a valid permit. 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 A9 were marked on the side of the appellant/claimant and the appellant was examined as PW1. No oral or documentary evidence was adduced on the side of the respondents. 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 riding of the offending autorickshaw by the 1[st] respondent driver. The contention raised by the insurer as to absence of valid permit for the autorickshaw was not pursued at the time of trial. Since insurance coverage of the offending 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.1,07,450/-, together with interest at the rate of 7.5% per **MACA.No.3176 OF 2014** -4- annum from the date of petition, i.e., 17.12.2012 till realisation, with proportionate cost. The insurer was directed to satisfy the award within three months from the date of 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 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 1[st] respondent was dispensed with by the order dated 23.11.2019. 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 **MACA.No.3176 OF 2014** -5- 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 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 **MACA.No.3176 OF 2014** -6- 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; |**Part I**|Amount claimed|Amount allowed| |---|---|---| |Loss of earnings|25,000/-|15,000/-<br>(5,000 x 3 months)| |Transport to hospital|2,000/-|6,000/-| |Extra nourishment|2,000/-|1,000/-| |Damages to clothing|1,000/-|Not entitled| |Treatment Expenses|50,000/-|27,250/-| |Bystander Expenses|1,000/-|1,200/-<br>(200 x 6 days)| ## **Part II** |**Part II**||| |---|---|---| |Pain and suffering|30,000/-|30,000/-| |Permanent disability|40,000/-|Not entitled| |Loss of earning power|20,000/-|27,000/-<br>(5,000 x 12 x 9 x 5/100)| |Total|**1,71,000/-**|**1,07,450/-**| 12. The accident occurred on 22.05.2012. At the time of accident, the appellant was aged 57 years. The appellant claimed a monthly income of Rs.6,000/- as owner of a stationery shop. 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.5,000/-, for the purpose of **MACA.No.3176 OF 2014** -7- 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 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. **MACA.No.3176 OF 2014** -8- 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 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 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.6,000/- claimed **MACA.No.3176 OF 2014** -9- by the appellant is not on the higher side and the same is accepted as his notional monthly income for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A3 is the discharge certificate and Ext.A5 is the discharge summary. Ext.A6 is the scan report and Ext.A7 is the outpatient tickets. As per Ext.A3 discharge certificate, the appellant sustained bilateral temporal bone fracture, left frontal bone fracture and fracture of right zygoma. He had undergone inpatient treatment for a period of 6 days from 22.05.2012 to 28.05.2012. The diagnosis in Ext.A5 discharge summary is right temporo parietal fracture with underlying temporo parietal fracture with underlying temporo parietal EDH. Right temporal craniatomy and evacuation of EDH was done. Ext.A9 series of medical bills are for a sum of Rs.27,250/-. Considering the nature of injuries sustained by the appellant, the Tribunal took the percentage of disability as 5% for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- for a period of **MACA.No.3176 OF 2014** -10- 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (6,000 x 4), resulting an additional compensation of **Rs.9,000/-** (24,000 - 15,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 6 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.6,000/-. 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 compensation, which requires no enhancement in this appeal. 19. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,200/- (200 x 6). Towards extra nourishment, the Tribunal awarded a sum of Rs.1,000/-. The accident is of the year 2012. The appellant had undergone inpatient **MACA.No.3176 OF 2014** -11- treatment for 6 days. 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 the head bystander expenses is re-fixed as Rs.1,500/- (250 x 6), resulting an additional compensation of **Rs.300/-** (1,500-1200). The compensation awarded by the Tribunal under the head extra nourishment represents just and reasonable compensation, which requires no enhancement in this appeal. 20. The Tribunal awarded no amount towards damages to clothing. Considering the fact that the accident is of the year 2012, this Court deem it appropriate to grant a sum of **Rs.1,000/-** under this head. 21. Towards medical expenses, the Tribunal awarded a sum of Rs.27,250/-, 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 **MACA.No.3176 OF 2014** -12- Tribunal awarded a sum of Rs.30,000/-. 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 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, **MACA.No.3176 OF 2014** -13- 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 57 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 **9** applied by the Tribunal is correct and proper. 26. Towards compensation for loss of earning power, (disability compensation) the Tribunal awarded a sum of Rs.27,000/- (5,000 x 12 x 9 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.6,000/-, **MACA.No.3176 OF 2014** -14- applying the multiplier of 9 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under this head is re-fixed as Rs.32,400/(6,000 x 12 x 9 x 5/100), resulting an additional compensation of **Rs.5,400/-** (32,400 - 27,000). 27. No amount has been granted towards loss of amenities. The Tribunal took the percentage of disability as 5% for the purpose of awarding compensation under various heads. Considering the nature of injuries sustained by the appellant, this Court deem it appropriate to grant a sum of **Rs.5,000/-** under this head. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.20,700/-** (Rupees twenty thousand and seven hundred only) [9,000 + 300+ 1,000 + 5,400 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] 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 **MACA.No.3176 OF 2014** -15- 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.D162475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** bpr