Ummu Fathima v John N.A. and N.A. Dominic and The India Insurance Co. Ltd.

1 MACA 1145 OF 2010 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** # **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** # **MACA.No.1145 OF 2010** **AGAINST THE AWARD IN OPMV 1121/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/S:** **UMMU FATHIMA, AGED 32 YEARS W/O.ABDULRAZAK, PALLIPARAMBIL HOUSE,, KANJIRASSERY DESOM, MULLOORKKARA VILLAGE,, TRICHUR.** **BY ADV. SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/S:** **1 JOHN N.A., S/O ANTONY, NEELAMKAVIL HOUSE KUNDANNOOR, ERUMAPETTY,VADAKKANCHERRY,, THRISSUR680 458. 2 N.A.DOMINIC, S/O.ANTONY NEELAMKAVIL HOUSE,ATTATHARA, KUNDANNOOR.P.O, ERUMAPETTY,, THRISSUR.680 503 3 THE INDIA INSURANCE CO. LTD ORISON COMPLEX, VADAKKANCHERRY ROAD,, KUNNAMKULAM680 543., (POLICY NO.760302/31/05/09248, VALID FROM, 26/09/2005 TO 25/09/2006)** **R3 BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 1145 OF 2010 ## **JUDGMENT** **Dated this the 25th day of November 2019** The appellant is the claimant in O.P(MV)No.1121 of 2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam, 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 22.08.2006, while she was travelling in an autorickshaw bearing registration No.KL-8/X-5045. At the place of accident, the said autorickshaw was hit by a lorry bearing registration No.KLK-2728, driven by the first respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant and others sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.8,00,000/- under various heads. 3 MACA 1145 OF 2010 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting the insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against the 1[st] respondent driver. The insurer alleged that the accident occurred due to the negligence on the part of the driver of the autorickshaw in which the appellant was travelling. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, the claim petition was tried along with connected matters. Exts.A1 to A22 were marked on the side of the claimants and PWs.1 and 2 were examined. The respondents have not chosen to adduce any oral or documentary evidence. Exts X1 to X3 were marked as third party exhibits. 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 lorry by its driver. Since 4 MACA 1145 OF 2010 insurance coverage of the offending 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.2,86,600/-, together with interest at the rate of 7% per annum from the date of petition till realisation. The insurer was directed to satisfy the award within 30 days from the date of award. 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 5 MACA 1145 OF 2010 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. 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' 6 MACA 1145 OF 2010 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; |thus;|| |---|---| |Loss of income/earnings|10,000/-| |Transportation to hospital,<br>extra nourishment and<br>damage to clothes|4,000/-| |Bystander expenses|3,300/-| |Pain and sufferings|10,000/-| |Loss of amenities|10,000/-| |Compensation for<br>disfiguration|15,000/-| |Compensation for disability|30,600/-| |Medical expenses|2,03,700/-| |Total|2,86,600/-| 11. The accident occurred on 22.08.2006. At the time of accident, the appellant was aged 32 years. The appellant is a housewife. She claimed a monthly income of Rs.3,500/-. The Tribunal fixed the monthly income notionally as Rs.2,500/- for the purpose of assessing compensation under various heads. 12. In **Suraja v. Dr.K.C.Prakash and another [2016 (5) KHC 751]** a Division Bench of this Court, in 7 MACA 1145 OF 2010 respect of a motor accident which occurred on 13.2.2001, in which a housewife aged 34 years sustained injuries, fixed the notional monthly income as Rs 3,000/- following the law laid down by the Apex Court in **Latha Wadhwa v. State of Bihar [(2001) 8 SCC 197].** 13. In the absence of any reliable evidence, 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 and this Court in the decisions referred to supra, the monthly income of Rs 3,500/- claimed by the appellant cannot be said to be on the higher side, which is taken as the notional monthly income of the appellant, for the purpose of assessing compensation under various heads. 14. The document marked as Ext A2 is the wound certificate issued from Royal Hospital, Kunnamkulam. The injuries noted in Ext A2 wound certificate are contusion cervical spine, elevation of open flap 10 cm x 6 cm bone deep over the (Rt.) frontal area, tenderness and swelling (Rt.) wrist, 8 MACA 1145 OF 2010 multiple laceration (Rt.) hand and abrasion 6 cm x 4 cm over the (Rt.) forearm. Ext A8 is the discharge summary issued from Aswini hospital, Thrissur. Its original is marked as Ext A9. As per the said discharge summary, the appellant was admitted on 22.08.2006 and discharged on 12.09.2006. In the said certificate, it is mentioned that the appellant sustained jefferson's fracture with subluxation of C1 and C2. Exts.A11 series are CT scan reports of cervical spine. Exts.A12 series are the prescriptions. She had undergone in patient treatment for a period of 22 days. Exts.A15 and A22 series are the medical bills for a total sum of Rs 2,03,700/-. 15. The document marked as Ext A16 is the disability certificate issued by PW2, in which the percentage of disability is assessed as 17%. The disability noted in Ext A16 are pain in neck, stiffness of cervical spine and inability to do concentrated work. On clinical and radiological examination PW2 noted united fracture of atlas vertibera C1, C2 rotary subluxation; the distance from odentoid to lateral mass different in both sides; stiffness of cervical spine and 9 MACA 1145 OF 2010 lateral flexion and rotation is restricted. On that basis, the whole body permanent disability was assessed as 17%. 16. The appellant was examined as PW1 and she gave evidence to the effect that she got head-ache and neck pain. She could not travel some distance and look side ways. She got diminished eye vision and giddiness. The Tribunal took percentage of disability as 6%. The reason for reducing the percentage of disability from 17% to 6% is not discernible from the impugned award. The injuries sustained by the appellant are serious in nature. The disability noted in Ext.A16 certificate was proved by examing the doctor as PW2. In the absence of any vitiating circumstances the Tribunal went wrong in reducing the percentage of disability assessed in that certificate to 6%. Having considered the nature of injuries sustained and the disabilities noted in Ext A16, this Court find that the appellant is entitled for assessment of disability compensation taking the percentage of disability as 17%, as assessed in that certificate. 17. Towards loss of earning, the Tribunal 10 MACA 1145 OF 2010 awarded a sum of Rs 10,000/-, at the rate of Rs 2,500/- for a period of four months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of four months fixed by the Tribunal for granting loss of earning is re-fixed as five months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earnings is re-fixed as Rs.17,500/- (3,500 x 5), resulting an additional compensation of **Rs.7,500/-** (17,500 – 10,000). 18. Towards transportation to hospital, extra nourishment and damage to clothing, the Tribunal awarded Rs.4,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation under the head extra nourishment is fixed as Rs.3,300/- (150 x 22); that under the head damage to clothes is fixed as Rs.750/-; and that under the head transportation to hospital is fixed as Rs.3,000/-. In the result, the compensation under the above heads is refixed as Rs.7,050/-, (3,300 + 750 + 3,000) resulting an additional compensation 11 MACA 1145 OF 2010 ## of **Rs. 3,050/-** (7,050-4,000) **.** 19. 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. 12 MACA 1145 OF 2010 20. 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. 21. In the instant case, as on the date of accident, the appellant was aged 32 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 not correct and the proper multiplier to be applied is **16.** 22. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.30,600/(2,500 x 12 x 17 x 6/100). Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of permanent disability as 17%, the compensation under the head permanent disability is re-fixed as Rs.1,14,240/- (3,500 x 12 x 16 x 17/100), resulting 13 MACA 1145 OF 2010 an additional compensation of Rs. **83,640/-** ( 1,14,240 - 30,600). 23. Towards loss of amenities the Tribunal awarded a sum of Rs.10,000/-. In Ext.A16 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 17%. Considering the nature of injuries sustained and the permanent disability noted in Ext A16, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.10,000/-** (20,000 – 10,000). 24. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.1,04,190/-** (Rupees one lakh four thousand one hundred and ninety only) [7,500 +3,050 + 83,640 + 10,000] 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 14 MACA 1145 OF 2010 judgment, 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/claimant 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.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. ## **Sd/-** ## **ANIL K.NARENDRAN** SKS **JUDGE**