Valsamma vs The Divisional Manager, The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 24TH DAY OF SEPTEMBER 2019/2ND ASWINA, 1941** ## **MACA.No.3590 OF 2019** **AGAINST THE AWARD IN OP(MV) NO.1444/2016 DATED 22-06-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT:** **VALSAMMA AGED 59 YEARS W/O.VISWAMBARAN, KALEYAKATTIL @ KALEKATTIL, KALLADAPADI, KIDANGOOR.P.O., KUMMANNOOR.** **BY ADV. SRI.P.M.JOSHI** ## **RESPONDENT:** **THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO.LTD., KOTTAYAM-1.** **SRI LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.3590 of 2019 ..2.. ## **JUDGMENT** The appellant is the claimant in O.P.(M.V.)No.1444 of 2016 on the file of the Motor Accident Claims Tribunal, Kottayam, 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 30.07.2016, involving a car bearing Reg.No.KL-03/A-575, owned and driven by the 1[st] respondent before the Tribunal and insured with the respondent herein, while she was walking through a public road. At the place of the accident, she was knocked down by the said vehicle. She fell down and sustained injuries. Alleging that the accident occurred due to rash and negligent driving of the car by its driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.6,83,000/- under various heads, which was limited to Rs.3,00,000/- for the purpose of payment of Court Fee. 2. Before the Tribunal, the owner-cum-driver of the offending vehicle remained absent and he was set ex parte. The insurer filed written statement admitting the insurance coverage of the offending vehicle; however, denying the MACA.No.3590 of 2019 **==> picture [20 x 8] intentionally omitted <==** negligence alleged against its driver. 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, Exts.A1 to A7 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral or documentary evidence. 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 offending motor vehicle, 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.1,53,120/-, which was rounded off to Rs.1,54,000/-, and the insurer was directed to satisfy the award, together with interest at the rate of 8.5% per annum from the date of petition, i.e., 02.11.2016 till realisation, with proportionate cost. The insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation MACA.No.3590 of 2019 **==> picture [20 x 7] intentionally omitted <==** 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 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 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 MACA.No.3590 of 2019 ..5.. 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' 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; |Sl.<br>No.|Head of Claim|Amount<br>Claimed|Amount<br>awarded|Basics – vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earnings|40,000/-|21,000/-|Rs.7000 x 3| |2|Partial loss of<br>earning|4,000/-|Nil|Not awarded| |3|Transport to Hospital|5,000/-|5,000/-|Awarded| MACA.No.3590 of 2019 ..6.. |4|Extra nourishment|2,000/-|2,000/-|| |---|---|---|---|---| |5|Damages to clothing<br>and articles|1,000/-|1,000/-|Awarded| |6|Others:<br>Medicine &<br>Bystanders expenses|25,000/-<br>6,000/-|3,320/-<br>3,000/-|(As per Ext.A7<br>bills)| |7|Compensation for<br>pain and suffering|1,00,000/-|50,000/-|Awarded| |8|Compensation for<br>continuing or<br>permanent disability<br>if any|2,00,000/-|37,800/-|(7,000 x 12 x 9 x<br>5/100)| |9|Loss of earning<br>power and<br>loss of amenities in<br>life|2,00,000/-<br>1,00,000/-|Nil<br>30,000/-|Awarded| ||Total Claim is limited<br>to|6,83,000/-<br>3,00,000/-|1,53,120/-<br>Rounded to<br>1,54,000/-|With interest at<br>8.5% per annum<br>from the date of<br>petition ie.<br>02.11.16 till<br>realisation.| 11. The accident occurred on 30.07.2016. At the time of accident, the appellant was aged 59 years (based on Exts.A4 and A6 documents). The appellant claimed a monthly income of Rs.10,000/- as Saleswoman at Kidangoor Hyper Market. 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.7,000/-, for the purpose of assessing compensation under MACA.No.3590 of 2019 ..7.. various heads. 12. 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.3590 of 2019 ..8.. 13. 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. 14. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, 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 MACA.No.3590 of 2019 **==> picture [20 x 8] intentionally omitted <==** monthly income of the appellant notionally as 10,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A4 is the wound certificate and Ext.A6 is the medical certificate. As per medical records, after the accident, the appellant was taken to Little Lourdes Mission Hospital, Kidangoor, where she was treated as an outpatient. She had sustained a fracture (Rt.) distal radius and fracture on the base of (Rt.) proximal phalanx (P1) 4[th] toe. She was treated conservatively with CMR and below elbow POP slab for radius and buddy strapping for toe were done on 06.08.2016. Her POP cast and strapping were removed on 27.08.2016. Ext.A7 series of medical bills are for a sum of Rs.3,320/-. The appellant was personally present before the Tribunal. The Tribunal took the percentage of permanent disability as 5%. 16. Towards loss of earnings, the Tribunal awarded a sum of Rs.21,000/-, at the rate of Rs.7,000/- for a period of 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 MACA.No.3590 of 2019 **==> picture [26 x 8] intentionally omitted <==** for granting loss of earning is just and reasonable. Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, the compensation under the head loss of earning is re-fixed as Rs.31,500/- (10,500 x 3), resulting an additional compensation of **Rs.10,500/-** (31,500 – 21,000). 17. Towards transportation to hospital, the Tribunal awarded a sum of Rs.5,000/-. 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, which requires no enhancement in this appeal. 18. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.2,000/-. 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 these heads represents just and reasonable compensation, which requires no enhancement in this appeal. MACA.No.3590 of 2019 ..11.. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.1,000/-. Considering the fact that the accident is of the year 2016, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of **Rs.500/-** . 20. Towards medical expenses, the Tribunal awarded a sum of Rs.3,320/-, covered by Ext.A7 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. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.50,000/-. 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. 22. Towards loss of amenities the Tribunal awarded a sum of Rs.30,000/-. Considering the nature of injuries sustained by the appellant, the compensation awarded by the MACA.No.3590 of 2019 **==> picture [26 x 7] intentionally omitted <==** Tribunal under this head cannot also be said to be on the lower side. 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, 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 MACA.No.3590 of 2019 ..13.. **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 59 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 permanent disability, the Tribunal awarded a sum of Rs.37,800/- (Rs.7,000 x 12 x 9 x 5/100). Since the monthly income of the appellant is notionally re-fixed at Rs.10,500/-, the compensation under the said head is recalculated as Rs.56,700/- (Rs.10,500 x 12 x 9 x 5/100). Thus, the appellant will be entitled to get an additional compensation of **₹18,900/-** (56,700 – 37,800) under the head, permanent disability. MACA.No.3590 of 2019 **==> picture [26 x 7] intentionally omitted <==** In the result, the appellant will be entitled for payment of an additional compensation of **Rs.29,900/-** (Rupees twenty nine thousand and nine hundred only) [10,500 + 500 + 18,900] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 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. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K. NARENDRAN** ## **JUDGE** Bka/