VIJITH.P. v. P.M. IMBICHIBI and K.T. PARAMESWARAN and UNITED INDIA INSURANCE COMPANY LIMITED

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **MACA.No.161 OF 2011** **AGAINST THE AWARD IN OPMV 1295/2007 DATED 12-05-2010 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **VIJITH.P., S/O.CHEKUTTI, PATHAYAPARAMBIL HOUSE, P.O.GOVINDAPURAM, KOZHIKODE-673 016. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNADHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) SMT.C.G.PREETHA SRI.T.K.SANDEEP** ## **RESPONDENTS:** |**1**|**P.M.IMBICHIBI,**| |---|---| ||**D/O.HASSANKOYA P.P., NEW HOME, KALLAI ROAD,**| ||**CALICUT - 673 635.**| |**2**|**K.T.PARAMESWARAN, S/O.KANDAN,**| ||**KALATHINGALTHODI, THEKKEKUTTIVAYAL,**| ||**KUNDAYITHODE, KOLATHARA.P.O,**| ||**CHERUVANNUR AMSOM DESOM, KOZHIKODE - 673655.**| |**3**|**UNITED INDIA INSURANCE COMPANY LIMITED,**| ||**CITY BRANCH-1, RAMEEZ ARCADE, C.H.FLY OVER**| ||**JUNCTION, CHEROOTY ROAD, CALICUT - 673635.**| ||**R1 BY ADV. SRI.M.A.GEORGE**| ||**SMT DEEPA GEORGE-STANDING COUNSEL FOR R3**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.161 of 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1295 of 2007 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, 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 08.03.2007, while he was travelling on a motorcycle bearing registration No.KL-11/8471, as pillion rider. At the place of accident, the said motorcycle was hit by a Maruthi car bearing registration No.KL-11/3393, owned by the 1[st] respondent, driven 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 driving of car by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent owner and 2[nd] respondent driver remained absent and they were set exparte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the car involved in the M.A.C.A.No.161 of 2011 3 accident; however, denying the negligence alleged against the 2[nd] respondent 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. The document marked as Ext.C1 is the disability certificate issued by the Medical Board assessing the permanent disability of the 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 the car by the 2[nd] respondent driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,43,986/-, together with interest at the rate of 7% per annum from the date of petition, i.e., 29.05.2007, till date of deposit, with a cost of Rs.1,250/and the 3[rd] respondent insurer was directed to satisfy the award within 30 days from the date of award. M.A.C.A.No.161 of 2011 4 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 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 M.A.C.A.No.161 of 2011 5 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' 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; ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Transport to hospital|1,000/-|500/-|| |2|Extra nourishment|5,000/-|750/-|| |3|Loss of earning|10,000/-|5,000/-|2,500 x 2 months| M.A.C.A.No.161 of 2011 6 |4|Expenses for treatment|1,00,000/-|74,836/-|Entire bill amount| |---|---|---|---|---| |5|Bystander's expenses|Nil|1,900/-|100 x 19 days| |6|Pain and sufferings|50,000/-|10,000/-|| |7|Permanent disability|35,000/-|51,000/-|2,500 x 12 x 17 x<br>10/100| ||Total||1,43,986/-|| 11. The accident occurred on 08.03.2007. At the time of accident, the appellant was aged 28 years. The appellant claimed a monthly income of Rs.5,000/- as an agent of Asianet Cable Service. 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.2,500/-, for the purpose of assessing compensation under 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 M.A.C.A.No.161 of 2011 7 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. 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 M.A.C.A.No.161 of 2011 8 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. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2007, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.5,000/- claimed by the appellant cannot be said to be on the higher side. Therefore, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.5,000/-, as claimed in the claim petition, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A2 is the wound certificate and Exts.A3 and A6 are discharge summaries. As per medical records, the appellant sustained fracture mid shaft of right femur; comminuted fracture to tibia and fibula right of right leg; multiple abrasion over right shin; and mild abrasion over the left side of chest. As per Exts.A3 and A6 discharge summaries, the appellant had undergone inpatient treatment M.A.C.A.No.161 of 2011 9 for a period of 19 days. Ext.A7 series of medical bills are for a sum of Rs.74,836/-. 16. 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 10%. The Tribunal accepted the percentage of permanent disability assessed by the Medical Board, for the purpose of awarding compensation under various heads. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.5,000/-, at the rate of Rs.2,500/- for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, the compensation under the head loss of earning is re-fixed as Rs.20,000/- (5,000 x 4), resulting an additional compensation of **Rs.15,000/-** (20,000 - 5,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 19 days. Towards M.A.C.A.No.161 of 2011 10 transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the hospitalisation of two spells the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.1,900/- (100 x 19). Towards extra nourishment, the Tribunal awarded a further sum of Rs.750/-. The accident is of the year 2007 and the appellant had undergone inpatient treatment for 19 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander expenses is re-fixed as Rs.3,800/- (200 x 19), resulting an additional compensation of **Rs.1,900/-** (3,800 - 1,900). The compensation under the head extra nourishment is re-fixed as Rs.2,850/- (150 x 19), resulting an additional compensation of **Rs.2,100/-** (2,850 - 750). 20. Towards medical expenses, the Tribunal awarded a sum of Rs.74,836/-, covered by Ext.A7 series of medical bills. M.A.C.A.No.161 of 2011 11 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.10,000/-. 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 the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000/-** (15,000 - 10,000). 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 M.A.C.A.No.161 of 2011 12 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. 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 appellant was aged 28 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 correct and proper. M.A.C.A.No.161 of 2011 13 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.51,000/- (2,500 x 12 x 17 x 10/100). Since the monthly income of the appellant is re-fixed notionally as Rs.5,000/-, applying the multiplier of 17 applicable to the age group of the appellant and the percentage of permanent disability as 10%, the compensation under the head permanent disability is re-fixed as Rs.1,02,000/- (5,000 x 12 x 17 x 10/100), resulting an additional compensation of **Rs.51,000/-** (1,02,000 - 51,000). 26. The Tribunal awarded no compensation towards loss of amenities. In Ext.C1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 10%. Considering the nature of injuries sustained and the permanent disability that has been certified in Ext.C1 disability certificate, this Court deem it appropriate to grant a sum of **Rs.10,000** /- under this head. 27. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.86,500/-** (Rupees Eighty Six Thousand Five Hundred only) [15,000 + 1,500 + 1,900 + 2,100 + 5,000 + 51,000 + 10,000] in this M.A.C.A.No.161 of 2011 14 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 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** yd