Varghese K.J. v. Divakaran

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **MACA.No.4744 OF 2019(A)** **AGAINST THE AWARD IN OP(MV) No.2561/2011 DATED 27-09-2018 OF SPECIAL COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** **APPELLANT/S:** **VARGHESE K.J., AGED 62 YEARS S/O JOSEPH K.V., 3/40(192) KOLET HOUSE, PAINKULAM PO, CHERUTHURUTHI, THRISSUR-679 531.** **BY ADV. SRI.SHEJI P.ABRAHAM** **RESPONDENT/S:** **DIVAKARAN, S/O. KESAVAN, KAIPPULLYTHODI HOUSE, PO KILLIMANGALAM VIA WADAKKANCHERY THRISSUR DISTRICT-680 591.** **R1 BY ADV. SRI.P.V.CHANDRA MOHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No. 4744 of 2019 -2- ## **JUDGMENT** The appellant is the respondent in O.P.(MV) No.2561 of 2011 on the file of the Motor Accidents Claims Tribunal, Trissur, a claim petition filed by the 1[st] respondent herein, under Section 166 of the Motor Vehicles Act, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 19.04.2011, while he was riding a motorcycle bearing Reg.No.KL-14/D-9709. At the place of the accident, the motorcycle was hit by a car bearing Reg. No.KL9/B-919, owned and driven by the appellant. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the appellant, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,46,500/- under various heads. 2. Before the Tribunal, the appellant owner-cumdriver of the car entered appearance and filed written statement, contending that the accident occurred due to the rash and negligent riding of the motorcycle by the claimant. 3. Before the Tribunal Exts.A1 to A11 were marked on the side of the respondent. Both sides have not chosen to MACA. No. 4744 of 2019 -3- adduce any oral 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 car by the appellant. Since the said vehicle was not having a valid insurance coverage, the appellant owner-cum-driver was held liable to compensate the claimant for the injuries sustained by him. Under various heads, the Tribunal awarded a total compensation of Rs.1,97,36/- together with interest at the rate of 8% per annum from the date of petition, i.e., 14.12.2011, till realisation with proportionate cost. 5. The appellant owner-cum-driver is before this Court in this appeal, by contending that the finding of the Tribunal on the question of negligence cannot be sustained and that, the compensation awarded by the Tribunal under the heads loss of earning, pain and sufferings and permanent disability is on the higher side. 6. Heard the learned counsel for the appellant and also the learned counsel for the respondent/claimant. 7. Relying on Annexure I judgment dated 12.02.2016 MACA. No. 4744 of 2019 -4- of the Judicial First Class Magistrate's Court, Wadakkancherry in C.C. No.478 of 2011, arising out of Crime No.115/2011 of Chelakkara Police Station, registered against the appellant, for an offence under Sections 279, 337 and 338 of the Indian Penal Code, 1860 read with Section 196 of the Motor Vehicles Act, 1988 the learned counsel for the appellant would contend that the finding of the Tribunal, in the impugned award, that the accident occurred due to the rash and negligent driving of the car by the appellant cannot be sustained in law. 8. Before the Tribunal, the appellant has not chosen to adduce any oral or documentary evidence. Ext.A2 final report in Crime No.115/2011 of Chelakkara Police Station was marked as Ext.A2, in which the appellant was charge sheeted by the police for an offence under Sections 279, 337 and 338 of the Indian Penal Code, read with Section 196 of the Motor Vehicles Act. Before the Tribunal, Ext.A2 final report in the crime registered in connection with the motor accident in question, in which the appellant was charge sheeted for an the aforesaid offence, was prima facie sufficient evidence of negligence on his part, for the purpose of a claim under MACA. No. 4744 of 2019 -5- Section 166 of the Motor Vehicles Act. In the absence of any evidence to the contra, the Tribunal held that the accident occurred due to the rash and negligent driving of the car by the appellant. 9. Though Annexure I judgment of the Judicial First Class Magistrate's Court, Wadakkancherry in C.C. No.478 of 2011, is one dated 12.02.2016, the appellant has not chosen to produce the same before the Tribunal. Moreover, a reading of the said judgment would show that the appellant was acquitted by the Magistrate Court mainly for the reason that the evidence of PWs.1 and 2 are in conflict with the prosecution story as regards the direction of the road and the place of accident. 10. In **Kusum Lata v. Satbir [(2011) 3 SCC 646]** the Apex Court held that, in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 11. In **Parameshwari v. Amir Chand [(2011) 11 SCC 635]** the Apex Court reiterated that, in a road accident MACA. No. 4744 of 2019 -6- claim, the strict principles of proof in a criminal case are not attracted. In **Parameshwari** , the Apex Court had taken note of the observation made in its earlier decision in **Bimla Devi** ## **v. Himachal Road Transport Corporation [(2009) 13 SCC** **530]** that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied. 12. Therefore, a mere acquittal of the appellant in the criminal case does not lead to an automatic inference that the accident did not occurred due to his rash and negligent driving of the car. The judgment of the criminal court is neither binding on the Motor Accidents Claims Tribunal nor relevant in a claim petition filed under Section 166 of the Motor Vehicles Act, except for the limited purpose to show that, there was a criminal prosecution against the driver of the vehicle involved in the accident, which ended in his conviction or acquittal. Therefore, this Court find no reason to interfere with the finding of negligence in the impugned award, based on mere acquittal of the appellant by the Magistrate Court, by MACA. No. 4744 of 2019 -7- Annexure A1 judgment, which was never placed on record before the Tribunal, at appropriate time. 13. Now the issue that remains to be considered is as to whether the compensation awarded by the Tribunal under the heads loss of earning, pain and sufferings; and permanent disability is on the higher side. 14. 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 source of profit; but the same should not be a pittance. 15. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the MACA. No. 4744 of 2019 -8- 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. 16. The compensation awarded by the Tribunal under the heads loss of earning, pain and sufferings and permanent disability is as follows; |Loss of earning (4,500 x 6)|Rs.27,000/-| |---|---| |Pain and suffering|Rs.25,000/-| |Permanent disability (4,500 x 15 x 8/100)|Rs.64,800/-| was aged 42 years. It was claimed that, at the time of accident, the claimant was earning a monthly income of Rs.15,000/- from PVC pipe bending works. No materials were MACA. No. 4744 of 2019 -9- placed before the Tribunal to prove the monthly income of the claimant. He has also not chosen to mount the box. The Tribunal took the monthly income, notionally, as Rs.4,500/-, for the purpose of awarding compensation under various heads. 18. 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 MACA. No. 4744 of 2019 -10- 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. 19. 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 Rs.6,500/per month. MACA. No. 4744 of 2019 -11- 20. Even in the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2011, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of the claimant could have been reckoned, notionally, as Rs.8,000/-. The Tribunal took his notional monthly income as Rs.4,500/-. 21. The document marked as Ext.A4 is the wound certificate and Ext.A9 is the discharge summary. As per medical records, in the accident, the appellant sustained fracture of right clavicle. He had under gone surgery for open reduction and implant fixation and thereafter, for implant removal and re-fixation with locking plate. The claimant had undergone inpatient treatment for 9 days. Ext.A11 series of medical bills are for a sum of Rs.62,756.29. 22. The document marked as Ext.A10 is the disability certificate issued by an individual doctor, in which, the permanent disability of the claimant, on account of the injuries sustained in the accident, is assessed as 8%. The claimant was personally present before the Tribunal. He was MACA. No. 4744 of 2019 -12- having deformity with bony irregularity of right clavicle; difficulty in lifting heavy objects; malunited right clavicle fracture; etc. Considering the physical condition of the claimant, the Tribunal took the percentage of permanent disability as 8%, for the purpose of awarding compensation under various heads. Considering the nature of injuries sustained and the physical disabilities noted by the Tribunal, on account of deformity with bony irregularity and malunited fracture, the percentage of permanent disability taken by the Tribunal cannot be said to be on the higher side, which warrants no interference in this appeal. 23. Towards loss of earning, the Tribunal awarded a sum of Rs.27,000/-, at the rate of Rs.4,500/- for a period of 6 months. Considering the nature of injuries sustained, the treatment the claimant had undergone and also the physical disabilities noted by the Tribunal, the compensation awarded by the Tribunal cannot be said to be on the higher side, especially when the notional monthly income taken by the Tribunal is much lower than the notional monthly income of Rs.8,000/- that could be taken for a motor accident of the MACA. No. 4744 of 2019 -13- year 2011. 24. Towards pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained, the treatment the claimant had undergone, and also the physical disabilities noted by the Tribunal, on account of deformity with bony irregularity and malunited fracture, the compensation awarded by the Tribunal under this head cannot be said to be on the higher side, which requires no interference in this appeal. 25. 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 MACA. No. 4744 of 2019 -14- 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. 26. 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. 27. In the instant case, as on the date of accident, the appellant was aged 42 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 15 applied by the Tribunal is not correct and the proper multiplier to be applied is **14** . MACA. No. 4744 of 2019 -15- 28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.64,800/- (4,500 x 12 x 15 x 8/100). Since the accident is of the year 2011, the monthly income of the claimant could have been reckoned, notionally, as Rs.8,000/-. If the compensation under the head permanent disability is recalculated applying the multiplier of 14 applicable to the age group of the claimant and the percentage of permanent disability as 8%, the compensation under the head permanent disability will be much higher than that granted by the Tribunal. Therefore, the compensation awarded by the Tribunal under this head cannot be said to be on the higher side, which requires no interference in this appeal. In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** das