Vishnu v. Ajaya Kumar and The United India Insurance Co Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** ## **MACA.No.3841 OF 2019** **AGAINST THE AWARD IN OP(MV)NO.293/2015 DATED 17-05-2019 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR** ## **APPELLANT/PETITIONER :** **VISHNU, AGED 28 YEARS S/O PARTHA SARATHY, ADIKKATTU PUTHEN VEEDU, KURUMOPAKARA P.O., ENADIMANGALAM.** **BY ADV. SRI.MANOJ RAMASWAMY** ## **RESPONDENTS/RESPONDENTS :** **1 AJAYA KUMAR, S/O BHANU, KAITHOTTUTHARAYIL, PERINGALA P.O.KAYAMKULAM, ALAPPUZHA DISTRICT-689 505. 2 THE UNITED INDIA INSURANCE CO LTD, REPRESENTED BY THE BRANCH MANAGER, PUNALUR, KOLLAM DISTRICT-691 305.** ## **SRI P.K. MANOJ KUMAR -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3841 OF 2019** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.293 of 2015 on the file of the Motor Accidents Claims Tribunal, Punalur, 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 31.12.2011, while he was riding a motorcycle bearing registration No.KL-26/A-5244. At the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-29/B-2682 owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the offending motorcycle by the 1[st] respondent rider, 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-cumrider remained absent and he was set ex-parte. The 2[nd] respondent insurer filed written statement admitting **MACA.No.3841 OF 2019** **3** insurance coverage of the offending motorcycle; however denying the negligence alleged against the 1[st] respondent rider. The 2[nd] respondent has also raised a contention that the amount of compensation claimed under various heads are exorbitant. 3. The claim petition was tried along with O.P(MV).No.294 of 2015 arising out of the very same accident. Exts.A1 to A12 were marked on the side of the claimants. Ext.B1 policy was marked on the side of the respondents. The letter issued from Sub Regional Transport Office, Kayamkulam was marked as Ext.C1. 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 riding of the offending motorcycle by the 1[st] respondent rider. Since insurance coverage of the said vehicle was not in dispute, insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,47,680/- together with interest at the rate of 7% per annum from the date of petition, till the date of deposit, **MACA.No.3841 OF 2019** **4** with a cost of Rs.1,000/- and directed the 2[nd] respondent insurer to satisfy the award amount . 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, 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-rider is dispensed with. 7. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of 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 **MACA.No.3841 OF 2019** **5** 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 conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 10. The compensation awarded by the Tribunal under various heads reads thus; **MACA.No.3841 OF 2019** **6** |Sl.<br>No.|Head of claim|Amount<br>claimed<br>(Rs.)|Amount<br>awarded<br>(Rs.)|Basis-vital<br>details in a nut<br>shell| |---|---|---|---|---| |1|Loss of earning|25000|17500|(7000x2½ )| |2|Transport to hospital and<br>back|2500|2500|| |3|Extra nourishment|1000|2000|| |4|Damages to clothing and<br>articles|1000|1000|| |5|Medical<br>expense<br>and<br>bystanders' expense|25000|3000|(for medical<br>expenses)<br>(Disallowed)| |6|Compensation for pain and<br>sufferings|30000|30000|| |7|Compensation<br>for<br>permanent disability and<br>loss of earning power|115500|85680|(7000x12x6x17)<br>100| |8|Compensation for loss of<br>amenities|Not<br>claimed|6000|| ||**Total**|**200000 **|**147680**|| 11. The accident occurred on 31.12.2011. At the time of accident, the appellant was aged 24 years. He claimed a monthly income of Rs.10,000/- as B.Sc Nurse. His certificate and mark list were marked as Ext.A8. No materials were produced before the Tribunal to prove the monthly income of the appellant. He has also not chosen to mount the box. In the absence of any reliable materials, Tribunal fixed the monthly income of the appellant notionally as Rs.7,000/-. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **MACA.No.3841 OF 2019** **7** **[(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 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** **MACA.No.3841 OF 2019** **8** **(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, 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, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.8,000/- for the purpose of assessing compensation under different heads. 15. The document marked as Ext.A5 is a copy of the **MACA.No.3841 OF 2019** **9** wound certificate issued from the Medical College Hospital, Alappuzha and Ext.A6 is the treatment certificate issued by an Orthopaedic Surgeon. As per Ext.A5 wound certificate, the appellant complained pain over right shoulder and he sustained fracture neck of scapula. 16. In Ext.A7 disability certificate issued by an individual doctor, the permanent disability of the appellant on account of the injuries sustained in the accident is assessed as 8%. The appellant has not taken steps to prove Ext.A7 disability certificate by examining the concerned doctor. In the absence of any reliable materials, considering the nature of injuries sustained by the appellant, the Tribunal took the percentage of disability as 6%. The procedure adopted by the Tribunal in this regard cannot be said to be arbitrary or illegal, warranting interference in this appeal. 17. Under the head loss of earning, the Tribunal awarded a sum of Rs.17,500/- at the rate of Rs.7,000/- for a period of 2½ months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it **MACA.No.3841 OF 2019** **10** appropriate to re-fix the period for loss of earning as 4 months. Since the monthly income of the appellant is refixed notionally as Rs.8,000/-, the compensation under the head loss of earning is re-fixed as Rs.32,000/- (8,000 x 4), resulting an additional compensation of **Rs.14,500/-** (32,000 – 17,500). 18. Towards transportation to hospital, the Tribunal awarded a sum of Rs.2,500/-. Towards extra nourishment, the Tribunal awarded a sum of Rs.2,000/- and a further sum of Rs.3,000/- towards medical expenses. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 19. As compensation towards pain and sufferings, the Tribunal awarded a sum of Rs.30,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, 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 **MACA.No.3841 OF 2019** **11** under this head. 20. Towards compensation for loss of amenities, the Tribunal awarded a sum of Rs.6,000/-. Considering the nature of injuries sustained by the appellant and also the permanent disability that had arisen out of those injuries, accepted by the Tribunal as 6%, this Court deem it appropriate to re-fix the compensation under the head loss of amenities as Rs.10,000/-, resulting an additional compensation of **Rs.4,000/-** (10,000 – 6,000). 21. 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], **MACA.No.3841 OF 2019** **12** 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. 22. 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. 23. In the instant case, as on the date of accident, the appellant was aged 24 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 should have been applied by the Tribunal. However, since the appellant did not produce any age proof, the Tribunal took the multiplier of **17** . The said finding of the Tribunal is not under **MACA.No.3841 OF 2019** **13** challenge in this appeal. The appellant has also not produced any reliable materials before this Court to prove his age, as on the date of accident. 24. Towards the head permanent disability, the Tribunal awarded a sum of Rs.85,680/- (7,000 x 12 x 17 x 6/100). Since the monthly income of the appellant is refixed notionally as Rs.8,000/-, the compensation under this head is re-fixed as Rs.97,920/- (8,000 x 12 x 17 x 6/100), resulting an additional compensation of **Rs.12,240/-** (97,920 – 85,680). In the result, the appellant will be entitled for an additional compensation of **Rs.30,740/-** (Rupees Thirty thousand seven hundred and forty only), [14,500 + 4,000 + 12,240] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. 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 **MACA.No.3841 OF 2019** **14** the appellant shall be in terms of 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. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/4/10