Thankam @ Thankamma v. Ayisha, Jabbar, Oriental Insurance Co. Ltd, Suneesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **MACA.No.978 OF 2016** **AGAINST THE AWARD IN OP(MV)NO.161/2010 DATED 30-03-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER :** **THANKAM @ THANKAMMA, AGED 78 YEARS, W/O VELAYUDHAN,SANKARANKANDATH VEEDU,MANALI, PALAKKAD TOWN,PALAKKAD.** ## **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS/RESPONDENTS:** - **1 T.P.AYISHA, W/O.JABBAR,CHERAMKULANGARA VEEDU,PARUTHIPPULLY, PERINGOTTUKURUSSI,PALAKKAD DISTRICT-678115.** - **2 JABBAR, S/O.KOYAKUTTY,CHERAMKULANGARA VEEDU, PARUTHIPPULLY,PERINGOTTUKURUSSI,PALAKKAD DISTRICT678115.** - **3 THE ORIENTAL INSURANCE CO.LTD,SHOBHA TSM COMPLEX,OPP.TOWN RAILWAY STATION, PALAKKAD-678013.** - **4 SUNEESH, S/O.SUKUMARAN,THAZHATHUVEETTIL HOUSE,CHERUMKULAM, THENKARA.P.O,MANNARKKAD,PALAKKAD DISTRICT-678108.** - ***5 UNIVERSAL SOMPO GENERAL INSURANCE CO.LTD REGD.OFFICE-201 TO 208,CRYSTAL PLAZA,OPP INFINITI MALL, LINK ROAD,ANDHERI(WEST),MUMBAI,MAHARASTHRA400058. (DELETED)** **(THE 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 07/11/2019 IN I.A. NO. 1/2019).** ## **R3 BY ADV. SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.978 OF 2016** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.161 of 2010 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 07.06.2009, while she was travelling in an autorickshaw bearing registration No.KL-09/S-6423 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the said autorickshaw was hit by another autorickshaw bearing registration No.KL-50/7994 owned and driven by the 4[th] respondent and insured with the 5[th] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads. 2. Before the Tribunal, respondents 1, 2 and 4 did not file written statement. The 3[rd] respondent insurer of **MACA.No.978 OF 2016** **3** autorickshaw bearing registration No.KL-09/S-6423 filed written statement admitting insurance coverage of the said vehicle; however denying negligence alleged against the 2[nd] respondent driver. 3. The 5[th] respondent insurer of autorickshaw bearing registration No.KL-50/7994 filed written statement contending that the accident occurred due to the rash and negligent driving of autorickshaw bearing registration No.KL09/S-6423 by the 2[nd] respondent. They neither denied or accepted the insurance coverage of the said vehicle. 4. Before the Tribunal, the claim petition was tried along with another claim petition arising out of the very same accident. Exts.A1 to A12 were marked on the side of the claimants. The respondents have not chosen to adduce any oral or documentary evidence. The document marked as Ext.X1 is the medical 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. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident **MACA.No.978 OF 2016** **4** occurred due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 3[rd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.49,250/-, and the insurer was directed to satisfy the award, together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost, within one month 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 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 under various heads. **MACA.No.978 OF 2016** **5** 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 because such determination can never be in arithmetical **MACA.No.978 OF 2016** **6** 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; |Sl.<br>No.|Head under which<br>compensation<br>is<br>claimed|Amount<br>claimed<br>(in Rupees)|Amount<br>allowed<br>(in Rupees)|Basis<br>on<br>which<br>allowed/disall<br>owed<br>with<br>reasons in a<br>nutshell| |---|---|---|---|---| |1|Loss of earnings|35,000|9,000|6 months| |2|Partial loss of earnings|15,000||| |3|Medical expenses|35,000|4,000|Ext.A10 series| |4|Bystander expenses|9,000||| |5|Damage to clothing<br>etc.|1,000|250|| |6|Transportation|10,000|1,000|| |7|extra-nourishment|15,000||| |8|Pain and suffering|25,000|10,000|| |9|Loss of love and<br>affection|||| |10|Loss of consortium|||| |11|Loss of estate|||| |12|Loss of dependency/<br>economic benefits|||| |13|Loss of amenities and|80,000|25,000|| **MACA.No.978 OF 2016** **7** ||conveniences<br>of<br>life/disability|||| |---|---|---|---|---| |14|Loss of earning power|||| |15|Funeral expenses|||| |16|Disfigurement/deformit<br>y|20,000||| |17|Any other head|15,000||| ||**Total**|**1,50,000**|**49,250**|9%<br>p.a.<br>interest from<br>date<br>of<br>petition| 12. The accident occurred on 07.06.2009. At the time of accident, the appellant was aged 72 years. The appellant claimed a monthly income of Rs.3,500/- as a coolie (manual labourer). The appellant has not chosen to mount the box in order to prove his monthly income. 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 **MACA.No.978 OF 2016** **8** 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. 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 **MACA.No.978 OF 2016** **9** 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 2009, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court finds that the monthly income of Rs.3,500/- claimed by the appellant is not on the higher side, which is accepted as his notional monthly income, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A8 is the discharge certificate and Ext.A9 is the discharge card. As per medical **MACA.No.978 OF 2016** **10** records, the appellant sustained lacerated wound on her right arm and fracture of both bones right forearm lower end. She had undergone inpatient treatment for a period of 9 days. Ext.A10 series are medical bills for a sum of Rs.3,829/-. 17. Ext.X1 is the disability certificate issued by the Medical Board, District Hospital, Palakkad, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. As per Ext.X1, the movements of her right wrist were within normal limits except for mild limitation of supination. The appellant was personally present before the Tribunal. She complained about difficulty for using her right hand and doing work with it. The Tribunal also noticed a bulging deformity at her right elbow region. 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, the period of 6 months **MACA.No.978 OF 2016** **11** 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.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.21,000/- (3,500 x 6), resulting an additional compensation of **Rs.12,000/-** (21,000 – 9,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,000/-** (2,000 – 1,000). 20. Towards bystander expenses and extra nourishment, nothing has been awarded by the Tribunal. The accident is of the year 2009 and the appellant had undergone inpatient treatment for 9 days. Considering the nature of injuries sustained and the treatment the appellant **MACA.No.978 OF 2016** **12** had undergone, as borne out from medical records, this Court deem it appropriate to grant a sum of **Rs.1,800/-** (200 x 9) under the head bystander's expenses and a further sum of **Rs.1,350/-** (150 x 9) towards extra nourishment. 21. Towards damage to clothing, the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2009, the compensation under this head is re-fixed as Rs.1,000/-, resulting an additional compensation of **Rs.750/-** (1,000 - 250). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.4,000/-, covered by Ext.A10 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. 23. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.978 OF 2016** **13** compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 – 10,000). 24. Though 25% disability was accepted based on Ext.X1 disability certificate, the Tribunal awarded no amount under the head permanent disability. The learned counsel for the 5[th] respondent insurer would point out the absence of any specific grounds in the memorandum of appeal on this issue. The learned counsel for the appellant would point out ground A of the memorandum of appeal. 25. Having considered the submissions made by the learned counsel on both sides, this Court finds that in view of the law laid down by the Apex Court in **State of Haryana** **v. Jasbir Kaur [(2003) 7 SCC 484]** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , claimant is entitled for determination of just and reasonable compensation under the admissible heads. In injury cases, when the injuries sustained by the claimant had resulted in permanent disability, as assessed in the disability certificate issued by the Medical Board, resulting **MACA.No.978 OF 2016** **14** loss of earning capacity, the claimant is entitled for award of just and reasonable compensation under the head permanent disability. In appeals filed under Section 173 of the Motor Vehicles Act, this Court has to ensure that a person injured in a motor accident or the legal representatives of a person who died in a motor accident, is granted just and reasonable compensation. Therefore, the appellant is entitled for award of just and reasonable compensation under the head permanent disability. 26. 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** **MACA.No.978 OF 2016** **15** [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. 27. 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. 28. In the instant case, as on the date of accident, the appellant was aged 72 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 **5** can be applied in the case of the appellant. 29. Since the monthly income of the appellant is re- **MACA.No.978 OF 2016** **16** fixed notionally as Rs.3,500/-, applying the multiplier of 5 and the percentage of permanent disability as 25%, the compensation under the head permanent disability is fixed as **Rs.52,500/-** (3,500 x 12 x 5 x 25/100) under this head. 30. Towards loss of amenities the Tribunal awarded a sum of Rs.25,000/-. In Ext.X1 disability certificate, the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 25%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, 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. 31. Towards the head disfigurement, no amount has been awarded by the Tribunal. Considering the bulging deformity on the right hand of the appellant noticed by the Tribunal in the impugned award, this Court deem it appropriate to grant an amount of **Rs.5,000/-** under the head disfigurement. **MACA.No.978 OF 2016** **17** 32. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.79,400/-** (Rupees Seventy nine thousand and four hundred only) [12,000 + 1,000 + 1,800 + 1,350 + 750 + 5,000 + 52,500 + 5,000] 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 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, excluding the period of delay of 205 days in filing this appeal, which was condoned by the order dated 07.11.2019 in C.M.Application No.1207 of 2017, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay, after deducting the 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 **MACA.No.978 OF 2016** **18** 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** AV/30/11