Varghese Antony @ Babu S/o Antony v. Subhash M.T., Santhosh S., and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 08TH DAY OF NOVEMBER 2019 / 17TH KARTHIKA, 1941** ## **MACA.No.2401 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1113/2007 DATED 10-03-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VATAKARA** ## **APPELLANT/CLAIM PETITIONER:** **VARGHESE ANTONY @ BABU S/O.ANTONEY, AGED 43 YEARS, PUTHANPURAYIL HOUSE,, VALAYAM AMSOM, DESOM, VATAKARA TALUK,, VALAYAM POST, KOZHIKODE DIST.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/RESPONDENTS :** **1 SUBHASH M.T., S/O.BALAN, MUTHINTAVIDA HOUSE, PULIYAVU POST, PARAKKADAVU VIA, VATAKARA - 673509.** **2 SANTHOSH S/O.BALAN, 22 YEARS, MUTHINTAVIDA HOUSE,PULIYAVU POST, PARAKKADAVU VIA, VATAKARA – 673 509.** **3 THE NEW INDIA ASSURANCE CO.LTD. SILVER PLAZA, IG ROAD, CALICUT - 673004.** ## **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2401 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1113 of 2007 on the file of the Motor Accidents Claims Tribunal, Vatakara, 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 25.12.2006, while he was riding a motorcycle bearing registration No.KL-18/A-9374. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-18/B-7204 owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent rider remained absent and they were set ex-parte. **MACA.No.2401 OF 2010** **3** 3. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying the negligence alleged against the 2[nd] respondent rider. It was contended that the compensation claimed is excessive. 4. Before the Tribunal, Exts.A1 to A7 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing 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 occurred due to the rash and negligent riding of the offending motorcycle by the 2[nd] respondent rider. 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.71,830/-, together with interest at the rate of 7.5% per **MACA.No.2401 OF 2010** **4** annum from the date of petition till realisation, with proportionate cost and the insurer was directed to satisfy the 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. Despite service of notice, none appears for the 1[st] respondent. Since the insurance coverage of the offending vehicle is admitted by the insurer, service of notice on the 2[nd] respondent is dispensed with. 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 **MACA.No.2401 OF 2010** **5** 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 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 **MACA.No.2401 OF 2010** **6** 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; ||Head of Claim|Amount<br>claimed<br>(in rupees)|Amount<br>allowed<br>(in rupees)|Basis vital details<br>in a nutshell| |---|---|---|---|---| |1|Pain and suffering|25,000/-|20,000/-|Open<br>Comminuted<br>fracture Patella<br>and large<br>lacerated wound<br>on R thigh +<br>total 35 days<br>hospitalization in<br>three spells.| |2|Transportation<br>expenses|10,000/-|3,500/-|3<br>spells<br>of<br>hospitalization at<br>MCH + 4 reviews<br>and other regular<br>O.P.Treatment as<br>seen<br>from<br>Ext.A5.| |3|Bystander expenses|1,000/-|7,000/-|35<br>days<br>hospitalization<br>200x35=7,000/-| |4|Medical<br>and<br>miscellaneous<br>expenses|50,000/-|930/-|Ext.A6<br>series<br>Medical Bills total<br>Rs.927.01<br>rounded off to<br>Rs.930/-| |5|Loss of earning|64,000/-|12,000/-|| |6|Loss of amenities &<br>conveniences etc.|15,000/-|3,000/-|| |7|Extra nourishment|2,000/-|2,000/-|| |8|Loss/Reduction<br>in<br>earning<br>capacity<br>Permanent Disability|1,00,000/- +<br>1,44,000/-|23,400/-|3000X12X<br>multiplier<br>13x5/100| **MACA.No.2401 OF 2010** **7** =23,400/- **TOTAL 71,830/-** 12. The accident occurred on 25.12.2006. At the time of accident, the appellant was aged 43 years. The appellant claimed a monthly income of Rs.6,000/- as Construction Worker. 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.3,000/-, 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 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, **MACA.No.2401 OF 2010** **8** 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 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 **MACA.No.2401 OF 2010** **9** 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 2006, 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.5,500/-, for the purpose of assessing compensation under various heads. 16. Ext.A2 is the wound certificate issued from Medical College Hospital, Calicut and Exts.A3 series and A6 series are reference cards and referal O.P.Tickets. The document marked as Ext.A5 series are medical bills amounting to Rs.927.01/-. Ext.A7 series are the medical lab reports. From medical records, the Tribunal noticed that the claimant sustained comminuted fracture on right patella **MACA.No.2401 OF 2010** **10** with terminal loss of flexion of right knee. He had undergone inpatient treatment for a period of 35 days, during different spells. 17. In Ext.C1 disability certificate, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, at 5%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.3,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 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.5,500/-, the compensation under the head loss of earning is re-fixed as Rs.33,000/- (5,500 x 6), resulting an additional compensation of **Rs.21,000/-** (33,000 - 12,000). **MACA.No.2401 OF 2010** **11** 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 35 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,500/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, during different spells, as borne out from medical records, the compensation under this head is refixed as Rs.5,000/-, resulting an additional compensation of **Rs.1,500/-** (5,000 – 3,500). 20. Towards bystander expenses the Tribunal awarded a sum of Rs.7,000/- (200 x 35). 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 represents just and reasonable compensation, which requires no enhancement in this appeal. 21. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 35 days. The compensation under the head extra nourishment is re- **MACA.No.2401 OF 2010** **12** fixed as Rs. 3,500/- (100 x 35), resulting an additional compensation of **Rs.1,500/-** (3,500 – 2,000). 22. Towards medical expenses, the Tribunal awarded a sum of Rs.930/-, 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. 23. 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 this head cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head. 24. 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** **MACA.No.2401 OF 2010** **13** **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. 25. 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 **MACA.No.2401 OF 2010** **14** guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 26. In the instant case, as on the date of accident, the appellant was aged 43 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 not correct and and the proper multiplier to be applied is **14** . 27. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.23,400/- (3,000 x 12 x 13 x 5/100). Since the monthly income of the appellant is refixed notionally as Rs.5,500/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 5%, the compensation under the head permanent disability is refixed as Rs.46,200/- (5,500 x 12 x 14 x 5/100), resulting an additional compensation of **Rs.22,800/-** (46,200 – 23,400). 28. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. In Ext.C1 disability certificate the **MACA.No.2401 OF 2010** **15** permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 5%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.7,000/-** (10,000 - 3,000). 29. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.53,800/-** (Rupees Fifty three thousand and eight hundred only) [21,000 + 1,500 + 1,500 + 22,800 + 7,000 ] 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, 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 **MACA.No.2401 OF 2010** **16** 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 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/14/11