Viswanathan Thenassery House v. P. Prakas an & Others and The Manager National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941** ## **MACA.No.850 OF 2010** **AGAINST THE AWARD IN OPMV 702/2006 DATED 08-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA** ## **APPELLANT/S:** **VISWANATHAN THENASSERY HOUSE, POKLAYI DESOM,, KOOLIMUTTAM VILLAGE, P.O., KODUNGALLUR TALUK.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENT/S:** |**1**|**P.PRAKASAN & OTHERS**| |---|---| ||**PAZHAVEEDU, ALAPPUZHA DISTRICT.**| |**2**|**GIREESHKUMAR SO.GOPINATHAN**| ||**KOONIYARA HOUSE, POKLAYI DESOM,, KOOLIMUTTAM**| ||**VILLAGE, P.O., KODUNGALLUR TALUK.**| |**3**|**THE MANAGER NATIONAL INSURANCE CO.LTD.**| ||**DIVISIONAL OFFICE, 1ST FLOOR, AJAYA VIHAR,,**| ||**M.G.ROAD, KOCHI, ERNAKULAM.**| ## **R1 BY ADV. SRI.JOE KALLIATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 850 of 2010 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.702 of 2006 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 12.05.2006, while he was travelling in a car bearing registration No.KL-2/7952, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the 2[nd] respondent lost control over the vehicle, which hit on a tree on the road side. In the accident, the appellant/claimant and his wife, who is the claimant in the connected claim petition, i.e., OP(MV) No.701 of 2006, 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.1,25,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 filed written statement admitting the accident; however, denying -3- MACA. No. 850 of 2010 the negligence alleged against the 2[nd] respondent driver. It was pointed out that the vehicle involved in the accident was having valid insurance, at the time of accident, with the 3[rd] respondent/insurer. 3. The 3[rd] respondent/insurer filed written statement admitting insurance coverage of the offending vehicle; however, raising a contention that the insurance policy is only an 'Act Only Policy' and that the 2[nd] respondent had no licence and badge at the time of accident. 4. The claim petition was tried along with OP(MV) No.701 of 2006. Before the Tribunal, Exts.A1 to A4 were marked on the side of the claimants. On the side of the respondents, the copy of the certificate of insurance was marked as Ext.B1. Both sides have not chosen to adduce any oral evidence. 5. 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. The Tribunal found that the offending vehicle is not a private vehicle and -4- MACA. No. 850 of 2010 therefore, even an Act Only Policy will cover the risk of passengers. In Ext.A2 charge sheet the licence particulars of the 2[nd] respondent driver is mentioned. Therefore, insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.62,400/-, the insurer was directed to satisfy the award, together with interest at the rate of 7% per annum from the date of petition till realisation, with proportionate cost. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] respondent/insurer. Since the insurance coverage of the offending vehicle is not in dispute, service of notice on the 1[st] respondent was dispensed with, by the order of this Court dated 17.10.2019. 8. 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 -5- MACA. No. 850 of 2010 under various heads. 9. 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. 10. 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 -6- MACA. No. 850 of 2010 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. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |**Head**|**Amount**<br>**allowed**|| |---|---|---| |Medical Expenses|23700|Ext.A15 series of<br>bills| |Hospital expenses|1700|17 x 100| |Transportation<br>expenses|1000|| |Loss of earning|8000|2,000 x 4| |Pain and suffering|17000|| |Loss of amenities|5000|| |Disability<br>compensation|6000|| |**Total**|**62,400/-**|| 12. The accident occurred on 12.05.2006. At the time of accident, the appellant was aged 62 years. He claimed a monthly income of Rs.4,500/- as a business man. No materials were produced before the Tribunal to prove the -7- MACA. No. 850 of 2010 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.2,000/-, for the purpose of assessing compensation under various heads. ## 13. 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 -8- MACA. No. 850 of 2010 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. 14. 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. -9- MACA. No. 850 of 2010 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income claimed by the appellant as Rs.4,500/- cannot be said to be on a higher side. Therefore, this Court deem it appropriate to accept Rs.4,500/- as the notional monthly income of the appellant notionally, for the purpose of assessing compensation under various heads. 16. Ext.A9 is the wound certificate and Ext.A10 is the discharge card. Medical records would show that the appellant was admitted in Modern Hospital, Kodungallur with deformity of left arm involving fracture of humerus and also fracture of the distal radius of the left hand. The investigation revealed that the fracture of zygoma also besides the fracture of radius and fracture of shaft of left humerus. Ext.A11 discharge summary issued from the West Fort Hospital, Thrissur shows that the appellant was later admitted there as inpatient for six days and Ext.A12 discharge summary shows that the -10- MACA. No. 850 of 2010 appellant was again admitted there for two days in the hospital. Ext.A13 is the discharge summary issued from the Mother Hospital, Thrissur, where the appellant was admitted as inpatient for the treatment of cervical myelopathy with paraesthesia of the hands and feet. 17. In Ext.A14 disability certificate, the percentage of permanent disability is certified as 11%. The disability was not assessed by a Medical Board. The doctor, who issued Ext.A14 disability certificate, was not examined. The Tribunal noticed that the disability assessed in Ext.A14 is limb disability, which has to be converted into whole body disability on the usual ratio of 35 to 40%. The left hand of the appellant is slightly paralysed and there is a mark of operation on his forearm. Therefore, the disability assessed in Ext.A14 was converted as a whole body disability of 5% for the purpose of awarding compensation under various heads. The assessment so made by the Tribunal, without discarding Ext.A14, in the absence of proof, cannot be said to be arbitrary or illegal, warranting an interference by this Court. 18. Towards loss of earning, the Tribunal awarded a -11- MACA. No. 850 of 2010 sum of Rs.8,000/-, at the rate of Rs.2,000/- per month for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is just and reasonable. Since the monthly income of the appellant is refixed notionally as Rs.4,500/-, the compensation under the head loss of earning is re-fixed as Rs.18,000/- (4,500 x 4), resulting an additional compensation of **Rs.10,000/-** . (18,000-10,000). 19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 17 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.1,000/-. 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 refixed as Rs.2,500/-, resulting an additional compensation of **Rs.1,500/-** (2,500-1,000). 20. Towards hospital expenses, the Tribunal awarded a -12- MACA. No. 850 of 2010 sum of Rs.1,700/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 17 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it proper to grant bystander expenses as Rs.2,550/- (150 x 17); and Rs.1,700/- (100 x 17) towards extra nourishment. In the result, compensation under hospital expenses is re-fixed as Rs.4,250/- (2,550 + 1,700), resulting an additional compensation of Rs. **2,550/-** (4,250 – 1,700). 21. Towards medical expenses, the Tribunal awarded a sum of Rs.23,700/-, covered by Ext.A15 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.17,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the -13- MACA. No. 850 of 2010 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 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 -14- MACA. No. 850 of 2010 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 62 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 **5** applied by the Tribunal is not correct and the proper multiplier to be applied is **7** . 26. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.6,000/- (2,000 x 12 x 5 x 5/100). Since the monthly income of the appellant is re-fixed notionally as Rs.4,500/-, applying the multiple of 7 applicable to the age group of the appellant and the percentage of -15- MACA. No. 850 of 2010 permanent disability as 5%, the compensation under the head permanent disability is re-fixed as Rs.18,900/- (4,500 x 12 x 7 x 5/100), resulting an additional compensation of **Rs.12,900/-** ( 18,900 – 6,000) under this head. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and also the permanent disability of 5% accepted by the Tribunal, the compensation awarded by the Tribunal under this head re-fixed as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** (10,000 – 5,000) under this head. 28. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.31,950/-** (Rupees thirty one thousand nine hundred and fifty only) [10,000 + 1,500 **+** 2,550 + 12,900 + 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, -16- MACA. No. 850 of 2010 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. Sd/- **ANIL K.NARENDRAN JUDGE** das