Thankaraj v. Santosh, Oriental Insurance Company Ltd., and Yuvaraj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **MACA.No.1337 OF 2012** **AGAINST THE AWARD IN OPMV 617/2006 DATED 26-11-2011 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** ## **APPELLANT:** **THANKARAJ, S/O SHANMUGHAM, JAYAVILASAM HOUSE, CHANDRAKANTHIBHAGOM, VANDENMEDU P.O., IDUKKI (DT). BY ADV. SRI.V.GOPAKUMAR** ## **RESPONDENTS:** |**1**|**SANTHOSH,**| |---|---| ||**PAREKADAN HOUSE,**| ||**KEEZHMADU P.O.,**| ||**ALUVA-683101.**| |**2**|**THE ORIENTAL INSURANCE COMPANY LTD.,**| ||**BRANCH OFFICE,**| ||**P B NO.50,**| ||**ELANJICKAL PLAZA,**| ||**KOTHAMANGALAM - 686691.**| |**3**|**MR. YUVARAJ,**| ||**S/O PALANANAYYA,**| ||**VALIYAKUDY HOUSE,**| ||**VANDENMEDU P.O.,**| ||**IDUKKI (DT)- 685602.**| **R2 BY ADV. SRI.A.R.GEORGE, STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1337 of 2012 2 ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.617 of 2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, 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 24.04.2006, while he was travelling in an autorikshaw bearing registration No.KL-7/BB-8074, owned by the 1[st] respondent, driven by the 3[rd] respondent and insured with the 2[nd] respondent. At the place of accident, the 3[rd] respondent driver applied sudden brake and the appellant was thrown out of the autorickshaw, who sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 3[rd] 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 owner and the 3[rd] respondent driver of the autorickshaw remained absent and they were set ex parte. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the MACA No.1337 of 2012 3 accident; however, denying the alleged accident and also the involvement of the said vehicle. The insurer contended that the 3[rd] respondent was not duly licensed to drive the autorickshaw and therefore, there is violation of the conditions of policy. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A15 were marked on the side of the claimant, who was examined as PW1. Exts.B1 and B2 were marked 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 driving of the autorickshaw by the 3[rd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. On a finding that, at the time of accident, the 3[rd] respondent was not duly authorised to drive a transport vehicle, the 2[nd] respondent insurer was granted recovery right against the 1[st] respondent owner, as per the proviso to sub-section (4) of Section 149 of the Motor Vehicles Act. Under various heads, the MACA No.1337 of 2012 4 Tribunal awarded a total compensation of Rs.47,000/-, together with interest at the rate of 7.5% per annum from the date of petition, i.e., from 30.09.2006, till date of deposit, with proportionate cost. The insurer was directed to satisfy the award and thereafter, recover the said amount from the 1[st] respondent owner. 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. Despite service of notice none appears for respondents 1 and 3. 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 MACA No.1337 of 2012 5 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 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; MACA No.1337 of 2012 6 |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(in Rs.)|Amount<br>awarded<br>(in Rs.)|Basis-vital<br>details in a<br>nutshell| |---|---|---|---|---| |1|Loss of earning|20,000|6,000|3,000/- per<br>month X 2<br>months| |2|Transportation|3,000|2,000|No reliable<br>document<br>produced.| |3|Extra<br>nourishment|5,000|2,000|| |4|Medical<br>expenses|50,000|6,000|bills produced| |5|Bystander<br>expenses|5,000|1,000|| |6|Pain and<br>suffering|1,00,000|20,000|Haemorrhagic<br>contusion left<br>fronto<br>parietal<br>cortex and<br>temporal<br>cortex and<br>left parietal<br>SDH| |7|Loss of<br>amenities|1,00,000|10,000|| |8|Compensation<br>for disability|3,00,000|Not<br>allowed|| ||**Total**|Limited to<br>3,00,000|**47,000**|Rs. 47,000/-<br>with interest<br>at the rate of<br>7.5% p.a.<br>from<br>30.09.06 to<br>realisation.| 12. The accident occurred on 24.04.2006. At the time of accident, the appellant was aged 29 years. The appellant claimed a monthly income of Rs.5,000/- as casual labourer. The appellant mounted the box as PW1. The Tribunal fixed the monthly income of the appellant, notionally, as Rs.3,000/-, for MACA No.1337 of 2012 7 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 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** MACA No.1337 of 2012 8 **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 Rs.6,500/- per month. 15. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, 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.5,000/claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A5 is the discharge MACA No.1337 of 2012 9 certificate. Ext.A7 and A11 are CT scan reports. Exts.A8, A9 and A10 are out-patient tickets. Ext.A12 is the scan report. As per medical records, in the accident, the appellant sustained left fronto parietal epidural hematoma (EDH), subdural hematoma (SDH) and intracerebral hemorrhage (ICH); haemorrhagic contusion left fronto parietal cortex and temporal cortex and left parietal SDH; head injury; and multiple abrasions. He had undergone inpatient treatment for a period of 12 days. Ext.A15 series of medical bills are for a sum of Rs.6,000/-. 17. Ext.A13 is the disability certificate issued by the Medical Board at the District Hospital, Idukki in which it is certified that the appellant has right hemiparesis (recovery stage) and he suffers a partial temporary disability of 30%. In the absence of any materials to show that, on account of the injuries sustained in the accident, the appellant is having any permanent disability, the Tribunal disallowed the claim made towards disability compensation. 18. During the pendency of this appeal, by the order dated 04.02.2019, the appellant was referred to the Medical Board at the Medical College Hospital, Kottayam, in order to assess his permanent disability, if any, on account of the injuries MACA No.1337 of 2012 10 sustained in the accident. The disability certificate dated 22.03.2019 issued by the Standing Disability Assessment Board at the Government Medical College Hospital, Kottayam is placed on record, along with a covering letter dated 03.04.2019 of the Superintendent of the Medical College Hospital, who is the Chairman of the Standing Disability Assessment Board, in which the permanent neurological disability of the appellant is assessed as 58%. 19. During the Course of arguments, the learned Standing Counsel for the 2[nd] respondent insurer has not raised any objection on the assessment of disability by the Standing Disability Assessment Board in the disability certificate dated 22.03.2019. Considering the nature of the injuries sustained and the disabilities noted in the disability certificate dated 22.03.2019, the permanent disability of the appellant, on account of the injuries sustained in the accident can be taken as 58%, for the purpose of assessing compensation under various heads. 20. In **Mekala v. Malathi M. [(2014) 11 SCC 178]** the appellant/claimant before the Apex Court was a student of 11th Standard, when the accident took place on 11.04.2005. She was MACA No.1337 of 2012 11 holding first rank in her school. She had an excellent career ahead of her, but for the accident in which she sustained grievous injuries, and became a permanently disabled. In Ext.P12 disability certificate, the doctor - PW2 certified a permanent disability of 70% on account of the fractures sustained to both the legs. Upon examination PW2 opined that the appellant is not able to squat. She is not able to sit with cross legged comfortably on the floor and the right range of movement (goniometer) - Fixed Flexion Deformity (FFD) of 850 - ligament instability on account of grievous injuries. PW2 deposed that the appellant has sustained fracture of both bones in both the legs. The knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are mal-united and she cannot walk without crutches. PW2 deposed further that the appellant is suffering from severe pain while walking and the thickness of her both legs are reduced. The High Court of Judicature at Madras awarded compensation under the head loss of earning, taking a monthly notional income of Rs.6,000/-, in the absence of any document on record, as she was a student. The Apex Court held that, the fact that the appellant was a brilliant student at the MACA No.1337 of 2012 12 time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs.6,000/- as monthly notional income for the purpose of awarding compensation under the head loss of earning is too meager an amount. Considering the fact that the appellant is a brilliant student, as she has secured first rank in the 10 th Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable public or private employment. But, on account of the permanent disablement she suffered due to injuries sustained in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per law laid down by the Court in the cases of **Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. [(1995) 1 SCC 551]** and **Govind Yadav v. New India Insurance Company Limited [(2011) 10 SCC 683]** . Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and the High Court while awarding compensation to the appellant as per the MACA No.1337 of 2012 13 principle laid down in the case of **Govind Yadav** , which has reiterated the position of **Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422]** . The Apex Court noticed that the appellant has undergone and undergoing substantial pain and suffering due to the accident, which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. It has been held in the case of **Reshma Kumari** that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. In the light of the principles laid down in the said case and keeping in mind the past results of the appellant, the Apex Court took her monthly income as Rs.10,000/-, for the purpose of computation of just and reasonable compensation under the head of loss of earning. The Apex Court held that the appellant is entitled for 50% increase, taking into consideration the future prospects, as per the principle laid down in **Santosh Devi v. National Insurance Company Ltd. [(2012) 6 SCC 421]** . 21. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , the Apex Court granted disability compensation to the injured, adding MACA No.1337 of 2012 14 50% future prospects to the notional monthly income, based on the principle laid down in **Santosh Devi v. National Insurance Company Limited [(2012) 6 SCC 421]** . A reading of the said decision would show that the injured before the Apex Court were having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity, and it was in such circumstances that the Apex Court granted them disability compensation by adding future prospects. 22. Considering the nature of the injuries sustained and the disabilities noted in the disability certificate dated 22.03.2019, the permanent disability of the appellant, on account of the injuries sustained in the accident is taken as 58%, for the purpose of assessing the compensation under various heads. Considering the nature of injuries sustained and the permanent disability arising therefrom, the appellant can be treated as an injured having higher percentage of functional disability, on account of permanent disability, which had resulted in higher extent of loss of future earning capacity. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, adding future prospects to his notional MACA No.1337 of 2012 15 monthly income. 23. In **Pranay Sethi [(2017) 16 SCC 680]** the Constitution Bench held that, while determining the income, an addition of **50%** of actual salary to the income of the deceased towards future prospects, where the deceased had a **permanent job** and was **below the age of 40 years** , should be made. The addition should be **30%** , if the age of the deceased was **between 40 to 50 years** . In case the deceased was between the age of **50 to 60 years** , the addition should be **15%** . Actual salary should be read as actual salary less tax. The Apex Court held further that, in case the deceased was **selfemployed** or on a **fixed salary** , an addition of **40%** of the established income should be the warrant where the deceased was **below the age of 40 years** . An addition of **25%** where the deceased was **between the age of 40 to 50 years** and **10%** where the deceased was **between the age of 50 to 60 years** should be regarded as the necessary method of computation. The established income means the income minus the tax component. 24. In the instant case, at the time of accident, the appellant was aged 29 years. He claimed a monthly income of MACA No.1337 of 2012 16 Rs.5,000/- as casual labourer. The appellant can only be treated as self-employed. In view of the law laid down by the Apex Court in **Mekala** , **Syed Sadiq** and **Pranay Sethi,** an addition of **40%** of the notional monthly income of the appellant, as re-fixed in this appeal considering the economic conditions prevailing at the time of accident and taking note of the fixation of notional monthly income by the Apex Court in **Ramachandrappa** and in **Syed Sadiq** referred to supra, can be made towards future prospects, since the appellant was **below the age of 40 years** . 25. Therefore, for the purpose of re-fixing the compensation under the head permanent disability, **40%** of the monthly income of the appellant notionally re-fixed in this appeal as Rs.5,000/-, i.e., a sum of Rs.2,000/- (5,000 x 40/100) has to be added towards future prospects. In the result, the monthly income of the appellant, for the purpose of re-fixing the compensation under the head permanent disability, is reckoned as Rs.7,000/- (5,000 + 2,000). 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** MACA No.1337 of 2012 17 **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. ## 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 MACA No.1337 of 2012 18 appellant was aged 29 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 correct and the proper multiplier to be applied is **17** . 29. The Tribunal awarded no compensation under the head permanent disability. In this appeal, the monthly income of the appellant has already been re-fixed as Rs.5,000/-. Adding 40% of the notional monthly income of the appellant towards future prospects (5,000 + 2,000 = 7,000); applying the multiplier of 17 applicable to the age group of the appellant and the percentage of loss of earning capacity as 58%, the compensation under the head permanent disability is fixed as **Rs.8,28,240/-** (7,000 x 12 x 17 x 58/100). 30. Towards loss of earning, the Tribunal awarded a sum of Rs.6,000/-, at the rate of Rs.3,000/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is MACA No.1337 of 2012 19 re-fixed as Rs.30,000/- (5,000 x 6), resulting an additional compensation of **Rs.24,000/-** (30,000 – 6,000) 31. The Tribunal awarded no compensation under the head transportation to hospital. The accident is of the year 2006. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 12 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, this Court deem it appropriate to grant a sum of **Rs.2,500/-** under the head transportation expenses. 32. Towards bystander expenses the Tribunal awarded a sum of Rs.1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 12 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head bystander expenses is re-fixed as Rs.2,400/- (200 x 12), resulting an additional compensation of **Rs.1,400/-** (2,400 – 1,000). The compensation awarded under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. MACA No.1337 of 2012 20 33. The Tribunal awarded no compensation under the head damage to clothing and articles. Considering the fact that the accident is of the year 2006, this Court deem it appropriate to grant a sum of **Rs.1,000/-** under this head. 34. Towards medical expenses, the Tribunal awarded a sum of Rs.6,000/-, covered by Ext.A15 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. 35. 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 the head pain and suffering is re-fixed as Rs.25,000/-, resulting an additional compensation of **Rs.5,000/-** (25,000 – 20,000). 36. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and 58% permanent disability on account of those injuries assessed in the disability certificate dated 22.03.2019, the compensation awarded by the Tribunal under this head is re-fixed as MACA No.1337 of 2012 21 Rs.60,000/-, resulting an additional compensation of **Rs.50,000/-** (60,000 – 10,000). 37. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.9,12,140/-** (Rupees nine lakhs twelve thousand one hundred and forty only) [8,28,240 + 24,000 + 2,500 + 1,400 + 1,000 + 5,000 + 50,000] 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 liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The 2[nd] respondent insurer will be entitled to recover the said amount by proceeding against the 1[st] respondent owner. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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.D1-62475/2016 dated 07.11.2019. The appellant shall provide his Bank account details (attested copy of MACA No.1337 of 2012 22 the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** MIN