Vivekanandan v. National Insurance Company Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **MACA.No.3894 OF 2019** **AGAINST THE AWARD IN OP(MV) NO.403/2017 DATED 11-06-2019 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT/PETITIONER:** **VIVEKANANDAN AGED 52 YEARS S/O.SREEDHARAN NAIR, KOOTALIL HOUSE, KEEZHADUR, MELADOOR KARA, ALATHUR VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/2ND RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD BRANCH OFFICE, MUNICIPAL SHOPPING COMPLEX, MAIN ROAD, N.PARAVUR-683 513.** ## **BY SRI LAL GEORGE - STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3894 OF 2019** 2 ## **JUDGMENT** Appellant is the claimant in O.P.(MV) No.403 of 2017 on the file of the Motor Accidents Claims Tribunal, N.Paravur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 18.09.2016, while he was walking through the side of Paravur-Chendamangalam road. When the appellant reached the place of accident, a motorcycle bearing registration No.KL-47/A-6767, owned and ridden by the 1[st] respondent before the Tribunal, and insured with the respondent herein hit him. The appellant/claimant fell on the road and sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the offending motorcycle by its rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.41,20,000/- under various heads, which was limited to Rs.15 lakhs for the purpose of payment of court fee. 2. Before the Tribunal the owner-cum-rider of the motorcycle remained absent and he was set exparte. The insurer filed a written statement admitting the insurance coverage of the offending vehicle; however denying the negligence attributed on the **MACA.No.3894 OF 2019** 3 rider. The insurer has also disputed the age, job, income of the appellant/claimant and also the injuries sustained by him. It was also contended that the compensation claimed by the appellant/claimant under various heads is on the higher side. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Disability certificate issued from the Medical College, Kottayam was marked as Ext.X1. The respondent has 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 riding of the offending motorcycle by its rider. Since insurance coverage of the offending vehicle is not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.2,75,200/with interest at the rate of 9% per annum from the date of petition till date of realisation, together with proportionate cost. The insurer was directed to satisfy the award within one month from the date of award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal. **MACA.No.3894 OF 2019** 4 6. Heard the learned counsel for the appellant/claimant and the learned Standing Counsel appearing for the 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 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 **MACA.No.3894 OF 2019** 5 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: |Sl.<br>No.|Head of claim|Amount<br>Claimed<br>(Rs)|Amount<br>awarded<br>(Rs.)|Basis<br>vital<br>details in a<br>nut shell| |---|---|---|---|---| |1|Loss of earnings|2,40,000/-|30,000/-|3 months| |2|Transportation expenses|25,000/-|6,000/-|| |3|Bystander expenses|2,00,000/-|7,000/-|14 days IP| |4|Damage to clothing and<br>articles|5,000/-|2,000/-|| |5|Medical expenses|3,00,000/-|78,400/-|Medical bills<br>produced| |6|Extra nourishment|50,000/-|6,000/-|| |7|Pain and sufferings|5,00,000/-|90,000/-|| |8|Loss of amenities|5,00,000/-|9,000/-|| |9|Compensation for disability|10,00,000/-|46,800/-|Ext.X1| **MACA.No.3894 OF 2019** 6 |10|Future treatment expenses|2,00,000/-|---|| |---|---|---|---|---| |11|Compensation for<br>disfiguration|1,00,000/-|---|| |12|Loss of earningcapacity|10,00,000/-|---|| ||Total|41,20,000/-<br>limited to<br>15,00,000/-|2,75,200/-|| 11. The accident occurred on 18.09.2016. At the time of accident, the appellant was aged 50 years. The appellant claimed a monthly income of Rs.24,000/- as Works Manager in a dairy farm. However, no reliable materials were placed on record before the Tribunal to prove the monthly income. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income of the appellant notionally as Rs.10,000/- for the purpose of assessing compensation under different 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 **MACA.No.3894 OF 2019** 7 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 **MACA.No.3894 OF 2019** 8 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 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 refix the monthly income of the appellant notionally as Rs.10,500/-, for the purpose of assessing compensation under different heads. 15. Ext.A3 wound certificate and Ext.A4 discharge summary would show that the appellant sustained abraded contusion over the right middle finger, bifrontal and temporal contusion SAH (Subarachnoid Haemorrhage), etc. He had undergone inpatient treatment for a period of 14 days, he was admitted on 18.09.2016 and discharged on 01.10.2016. In Ext.X1 disability certificate, the percentage of permanent disability is certified as 3%, which was accepted by the Tribunal. **MACA.No.3894 OF 2019** 9 16. Towards loss of earning, the Tribunal awarded a sum of Rs.30,000/- at the rate of Rs.10,000/- per month for a period of three months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, this Court deem it appropriate to grant loss of earning to the appellant for a period of five months. Since the monthly income of the appellant is notionally re-fixed as Rs.10,500/-, the compensation under the head 'loss of earnings' is re-fixed as Rs.52,500/-(10,500x5), resulting an additional compensation of Rs. **22,500/-** (52,500-30,000). 17. Towards bystander expenses and extra nourishment, the Tribunal awarded a sum of Rs.7,000/- and Rs.6,000/respectively. Considering the nature of injuries sustained and the treatment he had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads cannot be said to be on the lower side, which requires no enhancement in this appeal. 18. Towards medical expenses, the Tribunal awarded a sum of Rs.78,400/- covered by Ext.A6 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable **MACA.No.3894 OF 2019** 10 compensation, which warrants no enhancement in this appeal. 19. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 2016. The compensation awarded by the Tribunal under this head cannot be said to be on the lower side, hence no enhancement is warranted. 20. Towards pain and suffering, the Tribunal awarded a sum of Rs.90,000/-. The Tribunal awarded such an amount under the head pain and suffering, taking into account the nature of injuries noticed in Ext.A3 wound certificate and Ext.A4 discharge summary, and also the treatment he had undergone. The compensation awarded by the Tribunal under this head cannot be said to be on the lower side, warranting enhancement in this appeal. 21. Towards loss of amenities in life, the Tribunal awarded Rs.9,000/-. Considering the nature of injuries sustained and the disability that had arisen therefrom, as certified in Ext.X1, this Court deem it appropriate to refix the compensation under this head as Rs.10,000/-, resulting an additional compensation of Rs. **1,000/-** (10000-9000) under this head. 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.** **MACA.No.3894 OF 2019** 11 **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 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 **MACA.No.3894 OF 2019** 12 ## said judgment. 24. In the instant case, as on the date of accident, the appellant was aged 50 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 **13** applied by the Tribunal is correct and proper. 25. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.46,800/- (10000x12x13x3/100). 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.49,140/- (10,500x12x13x3/100), resulting an additional compensation of **Rs.2,340/-** . In the result, the appellant will be entitled for an enhanced compensation of **Rs.25,840/-** (Rupees Twenty Five Thousand Eight Hundred and Forty only] [22,500+1,000+2,340] in this appeal, which will carry interest at the rate of 8% per annum, from the date of petition till the date of realisation. The 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 **MACA.No.3894 OF 2019** 13 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** jv