Vishnu, S/o Unni v. Devadas and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **MACA.No.1549 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.193/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA DATED 19.12.2008** ## **APPELLANT/PETITIONER :** **VISHNU, S/O.UNNI, THEKKEVEEDU, WARD NO.X,, PUNNAPRA SOUTH PANCHAYAT,PUNNAPRA.P.O.** **BY ADV. SRI.P.V.BABY** ## **RESPONDENTS/RESPONDENTS :** **1 DEVADAS, S/O.VIJAYAN THOTTUNGAL WARD, PUNNAPRA SOUTH PANCHAYAT,, PUNNAPRA.P.O.** **2 UNITED INDIA INSURANCE CO. LTD. MULLAKKAL, ALAPPUZHA.** **R2 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1549 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.193 of 2003 on the file of the Motor Accidents Claims Tribunal, Alappuzha, 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 25.05.2002, while he was travelling in an autorickshaw bearing registration No.KL-4/J-5469 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the 1[st] respondent driver suddenly applied brake and the autorickshaw turned down, as a result of which, the appellant/claimant fell down and sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,86,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent/owner-cumdriver remained absent and he was set ex-parte. The 2[nd] respondent/insurer filed written statement admitting the **MACA.No.1549 OF 2010** **3** insurance coverage of the autorickshaw involved in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cum-driver. It was contended that the compensation claimed is exorbitant. 3. Before the Tribunal, Exts.A1 to A11 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the vehicle was marked as Ext.B1. The document marked as Ext.C1 is the disability certificate issued by the Medical Board at General Hospital, Alappuzha assessing the permanent disability of the appellant/ claimant, on account of the injuries sustained in the motor accident. Both sides have not chosen to 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 autorickshaw by the 1[st] respondent driver. Since insurance coverage of the vehicle is not in dispute, the 2[nd] respondent insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of **MACA.No.1549 OF 2010** ## **4** Rs.1,10,000/- and the 2[nd] respondent insurer was directed to satisfy the award, together with interest at the rate of 7.5% per annum from the date of petition, i.e., 08.04.2003 till realisation, with a cost of Rs.1,100/-, within 30 days from the date of award. 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 2[nd] respondent/insurer. Since insurance coverage of the offending vehicle is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner-cum-driver is dispensed with. 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 **MACA.No.1549 OF 2010** **5** 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. 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 **MACA.No.1549 OF 2010** **6** 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; |Heads|Amount allowed<br>(in rupees)| |---|---| |Compensation for loss of earning|9,000/-| |Cost of medicine and treatment<br>charges|60,000/-| |Transportation charges|3,000/-| |Bystander expenses|3,000/-| |Extra nourishment|500/-| |Damage to clothing|300/-| |Compensation for pain and suffering|15,000/-| |Compensation for loss of discomfort<br>and loss of earning power|16,200/-| |Compensation for loss of amenities|3,000/-| |**Total**|**1,10,000/-**| 11. The accident occurred on 24.05.2002. At the time of accident, the appellant was aged 29 years. The appellant claimed a monthly income of Rs.4,000/- as an Artist. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant **MACA.No.1549 OF 2010** **7** has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.1,500/-, 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 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 **MACA.No.1549 OF 2010** **8** 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 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, **MACA.No.1549 OF 2010** **9** considering the economic conditions prevailing at the time of accident, i.e., during the year 2002, 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.3,500/-, for the purpose of assessing compensation under various heads. 15. The document marked as Ext.A4 is the wound certificate issued from the Government Hospital, Haripad. Ext.A6 is the discharge summary issued from the Medical Trust Hospital, Ernakulam. As per the medical records, in the accident, the appellant sustained Type II open fracture of medial malleolus with bone loss above medial malleolus and medial aspect of tibial platond with fracture of distal 1/3 fibula (R) and multiple abrasion on left shoulder and left lower limb. He was admitted in Medical College Hospital on 24.05.2002 and discharged on 18.06.2002. The fracture sustained on the fibula was treated by open reduction and internal fixation. Free gracitis muscle flap over medial aspect right leg and ankle of and SSG was done on **MACA.No.1549 OF 2010** **10** 28.05.2002. He was again admitted on 05.07.2002 and discharged on 08.07.2002. At that time, SSG (R) ankle done on 06.07.2002. Again he was admitted on 26.08.2002 and discharged on 11.09.2002. Exts.A7, A8, A9, A10 and A11 series are the medical bills for a sum of Rs.60,105/-. 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 5%. 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.9,000/-, at the rate of Rs.1,500/- per month for a period of 6 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 6 months fixed by the Tribunal for granting loss of earning is re-fixed as 7 months. Since the monthly income of the appellant is re-fixed notionally as Rs.3,500/-, the compensation under the head loss of earning is re-fixed as Rs.24,500/- (3,500 x **MACA.No.1549 OF 2010** **11** 7), resulting an additional compensation of **Rs.15,500/-** (24,500 – 9,000). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 43 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, in three different spells, as borne out from medical records, the compensation under this head is refixed as Rs.3,500/-, resulting an additional compensation of **Rs.500/-** (3,500 – 3,000). 19. Towards bystander expenses the Tribunal awarded a sum of Rs.3,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.500/-. The accident is of the year 2002 and the appellant had undergone inpatient treatment for 43 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 refixed as Rs.6,450/- (43 x 150), resulting an additional **MACA.No.1549 OF 2010** **12** compensation of **Rs.3,450/-** (6,450 – 3,000). The compensation under the head extra nourishment is re-fixed as Rs.4,300/(43 x 100), resulting an additional compensation of **Rs.3,800/-** (4,300 - 500). 20. Towards damage to clothing, the Tribunal awarded a sum of Rs.300/-. Considering the fact that the accident is of the year 2002, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of **Rs.450/-** (750 - 300). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.60,000/-, covered by Exts.A8 to A11 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.15,000/-. 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 **MACA.No.1549 OF 2010** **13** 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 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., **MACA.No.1549 OF 2010** **14** 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 appellant was aged 29 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 18 applied by the Tribunal is not correct and the proper multiplier to be applied is **17** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.16,200/- (1,500 x 12 x 18 x 5/100). Since the monthly income of the appellant is refixed notionally as Rs.3,500/-, applying the multiplier of 17 applicable to the age group of the appellant and the **MACA.No.1549 OF 2010** **15** percentage of permanent disability as 5%, the compensation under the head permanent disability is refixed as Rs.35,700/- (3,500 x 12 x 17 x 5/100), resulting an additional compensation of **Rs.19,500/-** (35,700 – 16,200). 27. Towards loss of amenities the Tribunal awarded a sum of Rs.3,000/-. Considering 5% permanent disability noted in Ext.C1 disability certificate, shortening of right leg by 1/2cm and disfigurement of right medial malleolis, the compensation awarded by the Tribunal under this head refixed as Rs.7,500/-, resulting an additional compensation of Rs. **4,500/-** (7,500 – 3,000). 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.47,700/-** (Rupees Forty seven thousand and seven hundred only) [15,500 + 500 + 3,450 + 3,800 + 450 + 19,500 + 4,500] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation, excluding the period of delay of 250 days in filing the appeal, which was condoned vide order dated 12.11.2019 in **MACA.No.1549 OF 2010** **16** C.M.Appln. No.1935 of 2010, subject to the condition that in case any enhancement of compensation is granted, the appellant shall not be entitled for interest on the said amount for the period of delay. The 2[nd] 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** AV/29/11