Thomas V.A. v. New India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **MACA.No.1316 OF 2017** ## **AGAINST THE AWARD DATED 28-10-2016 IN OP(MV)No.817/2016 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA** ## **APPELLANT/PETITIONER:** |***1**|**THOMAS V.A.**| |---|---| ||**AGED 49 YEARS,S/O. AUGUSTINE, VELIKKAKATH HOUSE,**| ||**PANNIYOOR AMSOM, P.O PALLIVAYAL,**| ||**ELAMBERAMPARA,VIA KARIMBAN,**| ||**TALIPARAMBA TALUK,KANNUR DISTRICT, PIN 670 142**| ||**(DIED)(LEGAL REPRESENTATIVES IMPLEADED)**| |**ADDL.**|**GRACY THOMAS**| |**A2**|**W/O LATE THOMAS V.A., AGED 48 YEARS,**| ||**VELIKKAKATH HOUSE, KANHIRANGAD, KUTTIYERI AMSOM, P.O.**| ||**KANHIRANGAD, TALIPARAMBA TALUK,**| ||**KANNUR DISTRICT PIN 670142**| |**ADDL.**|**ABIN THOMAS**| |**A3**|**S/O LATE THOMAS V.A., AGED 23 YEARS,**| ||**VELIKKAKATH HOUSE, KANHIRANGAD, KUTTIYERI AMSOM, P.O.**| ||**KANHIRANGAD, TALIPARAMBA TALUK,**| ||**KANNUR DISTRICT PIN 670142**| |**ADDL.**|<br>**BIBIN THOMAS**| |**A4**|**S/O LATE THOMAS V.A., AGED 23 YEARS,**| ||**VELIKKAKATH HOUSE, KANHIRANGAD, KUTTIYERI AMSOM, P.O.**| ||**KANHIRANGAD, TALIPARAMBA TALUK, KANNUR DISTRICT PIN**| ||**670142**| ||**(ADDITIONAL APPELLANTS 2 TO 4 ARE IMPLEADED AS LEGAL**| ||**REPRESENTATIVES OF THE DECEASED APPELLANT AS PER**| ||**ORDER DATED 26/6/19 IN IA 1/19 IN MACA 1316/2017)**| ||**BY ADV. SMT.M.R.JAYALATHA**| MACA.No.1316 of 2017 2 ## **RESPONDENT/3RD RESPONDENT:** **M/S. NEW INDIA INSURANCE CO. LTD. THIRUVANANTHAPURAM 695 001 (POLICY NO 76140031120200028384 (INSURER OF BUS KL-15-8136)** **R1 BY ADV. SRI.M.M.IRSHAD MOOPPAN SRI A.A.ZIYAD REHMAN-STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1316 of 2017 3 ## **JUDGMENT** The original appellant was the claimant in O.P.(MV) No.817 of 2016 on the file of the Motor Accidents Claims Tribunal, Taliparamba, 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 26.05.2013, while he was travelling in a motorcycle bearing registration No.KL-11/AA-9039. At the place of accident the motorcycle was hit by a KSRTC bus bearing registration No.KL15/8136, owned by the 1[st] respondent and driven by the 2[nd] respondent before the Tribunal and insured with the respondent herein. In the accident, the deceased sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,80,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 filed a written statement admitting the accident; however denying the negligence attributed on the 2[nd] respondent driver. It was contended that the compensation claimed by the appellant/ claimant under varios heads are on a higher side. The 3[rd] MACA.No.1316 of 2017 4 respondent insurer filed a written statement admitting the insurance coverage; however denying the negligence attributed on the 2[nd] respondent driver of the bus and also disputing the claim made under various heads. 3. Before the Tribunal, Exts.A1 to A7 were marked on the side of the original appellant/claimant. The document marked as Ext.X1 is the disability certificate, certifying 4% permanent disability of the original appellant/claimant, on account of the injuries sustained in the motor accident. 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 KSRTC bus by its driver. Since 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.1,81,200/- and directed the respondent insurer to deposit the said amount together with interest at the rate of 9% per annum from the date of petition, i.e., 06.07.2015, till realisation, together with proportionate costs. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant is MACA.No.1316 of 2017 5 before this Court in this appeal filed under Section 173 of the Motor Vehicles Act. During the pendency of this appeal, the original appellant died and his legal heirs are impleaded as additional appellants 2 to 4. 6. Heard the learned counsel for additional appellants 2 to 4 and also the learned Standing Counsel appearing for the respondent insurer. 7. The issue that arises for consideration in this appeal is as to whether the additional appellants 2 to 4, who are the legal heirs of the deceased original appellant, are 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 MACA.No.1316 of 2017 6 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. 9. The compensation awarded by the Tribunal under ## various heads reads thus: |Sl.<br>No.|Head of claim|Amount<br>claimed (Rs.)|Amount<br>awarded (Rs.)|Basis-vital<br>details in<br>a nut shell| |---|---|---|---|---| |1|Loss of earning|90,000/-|15,000/-|| |2|Partial loss of earning|--|---|| |3|Transport to hospital|10,000/-|4,600/-|| |4|Extra nourishment|3,000/-|6,000/-|| |5|Damage to clothing|2,000/-|2,000/-|| |6|Others: Medical bills/<br>Bystanders expense|45,000/-<br>--|30,200/-<br>4,200/-|Medical<br>bills<br>produced| |7|Pain and suffering|30,000/-|80,000/-|| |8|Compensation for<br>permanent disability|2,00,000/-<br>---|31,200/-|(2,400x<br>13)| |9|Compensation for<br>loss of earning power||---|| |10|Amenities|---|8,000/-|| ||TOTAL|Rs.3,80,000/-|Rs.1,81,200/<br>-|| 10. The accident occurred on 26.05.2013. At the time of accident, the original appellant was aged 47 years. He claimed a monthly income of Rs.15,000/- as Gas Welder cum Fitter. No materials were produced before the Tribunal to prove his monthly income or technical qualification. He has also not chosen to mount MACA.No.1316 of 2017 7 the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 11. 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.1316 of 2017 8 12. 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. 13. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2013, 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.9,000/-, for the purpose of assessing compensation under various heads. MACA.No.1316 of 2017 9 14. The document marked as Ext.A2 is a copy of accident register cum wound certificate. Ext.A3 series are discharge summaries and Ext.A4 series are outpatient records. Ext.A5 is the prescription and Ext.A6 series are medical bills. Ext.A7 series are taxi bills. Ext.A2 wound certificate would show that the original appellant sustained closed fracture of junction of middle 1/3 and lateral 1/3 of right clavicle, multiple rib fracture of right 3, 4, 5 ribs, extensive lacerated injury on the right hand, lacerated injury all over the body. Ext.A3 discharge summary would show that he had undergone in patient treatment from 29.05.2013 to 03.06.2013. He was again admitted on 10.06.2013 and discharged on 14.06.2013. 15. In Ext.X1 is the disability certificate issued by the Disability Medical Board, District Hospital, Kannur 4% permanent disability is assessed. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 16. Towards loss of earning, the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- per month for a period of 3 months. Considering the nature of injuries sustained by the original appellant, which includes multiple rib fracture, and the MACA.No.1316 of 2017 10 treatment he 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 five months. Since the monthly income of the original appellant is re-fixed notionally as Rs.9,000/-, the compensation under the head loss of earning is re-fixed as Rs.45,000/- (9,000 x 5), resulting an additional compensation of **Rs.30,000/-** (45,000 – 15,000). 17. On account of the injuries sustained in the accident, the original appellant had undergone inpatient treatment for 9 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.4,600/- covered by Ext.A7 series of taxi bills. Considering the nature of injuries sustained and the treatment the original 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. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.4,200/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.4,200/-. The accident is of the year 2013 and the original appellant had undergone inpatient treatment for 9 days. Considering the nature of injuries sustained MACA.No.1316 of 2017 11 and the treatment he had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards damage to clothing, the Tribunal awarded a sum of Rs.2,000/-. Considering the fact that the accident is of the year 2013, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 20. Towards medical expenses, the Tribunal awarded a sum of Rs.30,200/- covered by Ext.A6 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. 21. Towards pain and suffering, the Tribunal awarded a sum of Rs.80,000/-. Considering the nature of injuries sustained by the original appellant, which includes closed fracture of junction of middle 1/3 and lateral 1/3 of right clavicle, multiple rib fracture of right 3, 4, 5 ribs, extensive lacerated injuries all over the body, and also the treatment he had undergone, the Tribunal awarded a higher compensation under the head pain and MACA.No.1316 of 2017 12 suffering. The compensation awarded by the Tribunal under this head cannot be said to be on a lower side, warranting enhancement in this appeal. 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 61 to 65 years and multiplier of **5** for 66 to 70 years. MACA.No.1316 of 2017 13 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 original appellant was aged 47 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 **13** applied by the Tribunal is correct and proper. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.31,200/- (5,000 x 12 x 13 x 4/100). Since the monthly income of the original appellant is refixed notionally as Rs.9,000/-, applying the multiple of 13 applicable to the age group of the original appellant and the percentage of permanent disability as 4%, the compensation under the head permanent disability is re-fixed Rs.56,160/-(9,000 x 12 x 13 x 4/100), resulting an additional compensation of Rs. **24,960/-** (56,160-31,200). MACA.No.1316 of 2017 14 26. Towards loss of amenities, the Tribunal awarded Rs.8,000/-. In Ext.X1 disability certificate, the permanent disability of the original appellant, on account of the injuries sustained in the accident, is assessed as 4%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.X1 disability certificate, the compensation under the head loss of amenities is re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.2,000/-** (10,000 – 8,000) under this head. In the result, the additional appellants 2 to 4 will be entitled for payment of an additional compensation of **Rs.59,960/-** (Rupees Fifty Nine Thousand Nine Hundred and Sixty only) [30,000 + 24,960 + 2,000] in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition, i.e., 30.12.2013, till the date of realisation, excluding the delay of 522 days in filing this appeal. The 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 original appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The additional compensation shall be MACA.No.1316 of 2017 15 apportioned between additional appellants 2 to 4 equally. The disbursement of the amount shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019. **Sd/-** **ANIL K. NARENDRAN** jv **JUDGE**