Vinod Sudhan v. Sheela P.A., Jithin, The Manager, United India Insurance Co. Ltd., Rajan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **MACA.No.4161 OF 2019** **AGAINST THE AWARD IN OPMV 209/2017 DATED 10-07-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** |**APPELLANT/S**<br>**:**|**APPELLANT/S**<br>**:**| |---|---| ||**VINOD SUDHAN, AGED 30 YEARS**| ||**S/O.SUDHAN MENON,**| ||**ARIYAMPARAMBATH HOUSE,**| ||**POLICE STATION NAGAR,**| ||**GURUVAYUR DESOM AND VILLAGE AND P.O.,**| ||**THRISSUR DISTRICT.**| ||**BY ADV. SRI.V.BINOY RAM**| |**RESPONDENT/S**<br>**:**|| |**1**|**SHEELA P.A., S/O.GEORGE,**| ||**PUTHUSSERY HOUSE, JAWAHAR NAGAR,**| ||**AZAD ROAD, IRINJALAKUDA,**| ||**THRISSUR DISTRICT, PIN - 680 121.**| |**2**|**JITHIN, S/O.GEORGE,**| ||**CHERUVATHOOR HOUSE,**| ||**EDAKULAM DESOM AND P.O.,**| ||**POOMANGALAM VILLAGE,**| ||**THRISSUR DISTRICT, PIN - 680 688.**| |**3**|**THE MANAGER,**| ||**THE UNITED INDIA INSURANCE CO.LTD.,**| ||**BRNCH OFFICE, P.B.NO.2,**| ||**ALENGADAN BUILDINGS,**| ||**MAIN ROAD, IRINJALAKUDA, PIN - 680 121.**| -2- MACA. No. 4161 of 2019 **4 RAJAN, S/O.RAMAN, KALATHERI HOUSE, EDAKULAM DESOM AND P.O., POOMANGALAM VILLAGE, THRISSUR DISTRICT, PIN -680 688.** ## **OTHER PRESENT:** **SRI. P.K.MANOJKUMAR, SC, UNITED INDIA INSURANCE CO.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 4161 of 2019 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.209 of 2017 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by the appellant/claimant in a motor accident, which occurred on 30.10.2016, while he was riding a motorcycle bearing registration No.KL-46/J-8094. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-45/J-3679, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. The 4[th] respondent is the insured of the offending autorickshaw. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending autorickshaw by the 2[nd] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads. 2. Before the Tribunal, the respondents 1, 2 and 4 -4- MACA. No. 4161 of 2019 remained absent and they were set ex parte. The 3[rd] respondent insurer filed written statement admitting insurance coverage of the offending vehicle; however, denying the negligence alleged against the 2[nd] respondent driver. The insurer has also raised a contention that the accident occurred due to the rash and negligent riding of motorcycle by the appellant/claimant. 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 A13 were marked on the side of the appellant/claimant. Disability certificate issued by the Medical Board was marked as Ext.X1. Respondents 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 vehicle by the 2[nd] respondent driver. Since insurance coverage of the offending vehicle is not in dispute, -5- MACA. No. 4161 of 2019 the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.4,40,430/-, and the insurer was directed to satisfy the award, together with interest at the rate of 8% per annum from the date of petition from 22.02.2017, till realisation, with proportionate cost. 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 different 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 -6- MACA. No. 4161 of 2019 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. 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 -7- MACA. No. 4161 of 2019 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>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earnings|1,80,00/-|13,500/-|| |2|Transportation expenses|20,000/-|1,000/-|| |3|Extra nourishment|20,000/-|2,000/-|| |4|Damage to clothings|20,000/-|500/-|| |5|Bystander's expenses|30,000/-|3,300/-|| |6|Medical expenses|1,50,000/-|7,930/-|| |7|Pain and suffering|1,00,000/-|30,000/-|| |8|Permanent disability and loss<br>of earning power|2,00,000/-|3,67,200/-|| |9|Loss of amenities|1,00,000/-|15,000/-|| ||**Total**|8,20,000/-<br>is limited to<br>5,00,000/**-**|**4,40,430/**-|Rs.4,40,430/-<br>along with<br>interest @ 8% p.a.<br>from 22.02.17 till<br>realisation.| 11. The accident occurred on 30.10.2016. At the time of accident, the appellant was aged 27 years. He claimed a monthly income of Rs.30,000/- as Front Office Manger. The document marked as Ext.A12 is the skill certificate to prove his qualification, which would only show that he had -8- MACA. No. 4161 of 2019 completed 6 weeks certificate course for Food and Beverage services. No reliable materials were placed on record 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.9,000/-, 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 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 -9- MACA. No. 4161 of 2019 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 evidence to prove his monthly income. Going by the state of -10- MACA. No. 4161 of 2019 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 monthly income of the appellant notionally as Rs.10,500/-, for the purpose of assessing compensation under various heads. 15. As per Ext.A9 treatment certificate, the appellant was advised rest for six weeks. He had undergone in patient treatment for a period of 11 days. Ext.A3 is the wound certificate and Exts.A7 and A8 are the discharge summaries. As per medical records, the appellant had sustained fracture shaft of right femur. As per the discharge summaries, he had undergone inpatient treatment for the period from 30.10.2016 to 05.11.2016, and thereafter on 13.05.2018 to 16.05.2018 -11- MACA. No. 4161 of 2019 for implant removal. 16. In Ext.X1 disability certificate issued by the Medical Board at General Hospital, Irinjalakuda, the percentage of permanent disability is assessed as 20% and that has been accepted by the Tribunal. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.13,500/-, for a period of 6 weeks after fixing the monthly income notionally as Rs.9,000. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of six weeks fixed by the Tribunal for granting loss of earning is re-fixed as 3 months. 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.18,000/-** (31,500 – 13,500). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. Considering the two spells of hospitalisation, this Court deem it refix the compensation -12- MACA. No. 4161 of 2019 under this head as Rs.3,000/- resulting an additional compensation of **Rs** . **2,000** /-(3,000 – 1,000). 19. 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 this head is re-fixed as Rs. 2,750/(Rs.250 x 11), resulting an additional compensation of **Rs** . **750** /-(2,750 – 2,000). The Tribunal awarded Rs.3,300/towards bystander expenses. The compensation under the head bystander expenses is re-fixed as Rs.3,850/- (350 x 11) resulting an additional compensation of **Rs** . **550** /- (3,850 – 3,300). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.500/-. 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.1,000** /-(1,500 – 1,000). 21. Towards medical expenses, the Tribunal awarded a -13- MACA. No. 4161 of 2019 sum of Rs.68,907/-, covered by Ext.A8 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. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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. 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 -14- MACA. No. 4161 of 2019 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. 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 -15- MACA. No. 4161 of 2019 appellant was aged 27 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. 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.3,67,200/- (9,000 x 12 x 17 x 20/100). Since the monthly income of the appellant is re-fixed notionally as Rs.10,500/-, the compensation under this head is re-fixed as Rs.4,28,400/- (10,500 x 12 x 17 x 20/100); resulting an additional compensation of **Rs** . **61,200** /- (4,38,400-3,67,200). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and 20% permanent disability assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head is re-fixed as Rs.20,000/-; resulting an additional compensation of **Rs** . **5,000** /- (20,000 – 5,000). 28. In the result, the appellant will be entitled for an additional compensation of **Rs.88,500/-** (Rupees eighty eight -16- MACA. No. 4161 of 2019 thousand five hundred only) [ 18,000 + 2,000 + 750 + 550 + 1,000 + 61,200 + 5,000] 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. Payment of additional compensation granted in this appeal shall be made to the appellant/claimant as per 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. ## **ANIL K.NARENDRAN JUDGE** das