Zeenath v. Ameer Siddikh S/o Fathima, Musthafa K. S/o Koyanni K.K., and The Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **MACA.No.4700 OF 2019(B)** **AGAINST THE AWARD IN OPMV 2797/2012 DATED 31-07-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/PETITIONER** **ZEENATH AGED 38 YEARS** **D/O.KOYANNI, KULAPURATH HOUSE, PALLAM KOTTAMBATHUR, P.O.PALLAM, VIA DESAMANGALAM, THRISSUR DISTRICT.** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENTS/RESPONDENTS** **1 AMEER SIDHIKH S/O.FATHIMA, KULAPPURATH HOUSE, PALLAM P.O., THRISSUR DISTRICT-679 532.** - **2 MUSTHAFA.K.,** **S/O.KOYANNI.K.K., KULAPPURATH HOUSE, PALLAM P.O., THRISSUR DISTRICT-679 532.** **3 THE ORIENTAL INSURANCE CO.LTD.,** **KPN SHOPPING COMPLEX, NEAR THIRUVAMBADI TEMPLE, SHORNUR ROAD, THRISSUR-680 022.** **R3 BY ADV. DR.ELIZABETH VARKEY R3 BY ADV. SRI.JITHIN SAJI ISAAC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.4700/2019 2 ## **JUDGMENT** The appellant is a claimant in OP(MV).No.2797 of 2012 on the file of the Motor Accidents Claims Tribunal, Thrissur, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 15.09.2012, while she was travelling in an autorikshaw bearing registration No.KL-48/D-550 owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent. At the place of accident, the 2nd respondent driver lost control over the autorikshaw and it overturned. In the accident, the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the autorikshaw by the 2nd respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,86,000/- under various heads. 2. Before the Tribunal respondents 1 and 2 did not file any written statement. The 3rd respondent insurer filed written statement admitting insurance coverage of the autorikshaw involved in the accident; however denying negligence alleged against the 2nd respondent. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The MACA.4700/2019 3 insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A13 were marked on the side of the appellant. Ext.A8 disability certificate was marked with objection and subject to proof. On the side of the respondents, Ext.B1 copy of insurance policy of the offending vehicle was marked. 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 autorikshaw by the 2nd respondent. Since insurance coverage of the said vehicle was not in dispute the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,52,900/- together with interest at the rate of 8% per annum from the date of petition till date of realisation, with proportionate cost, and the insurer was directed to satisfy the award. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. The issue that arises for consideration in this appeal is MACA.4700/2019 4 as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 7. 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. 8. 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 MACA.4700/2019 5 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. 9. In the instant case, the compensation awarded by the ## Tribunal under various heads reads thus : ||Head of claim|Amount<br>claimed|Amount awarded| |---|---|---|---| |1|Loss of earning (total)|30,000/-|15,000/-| |2|Medical Expenses|25,000/-|15,300/-| |3|Bystander expenses||1,200/-| |4|Transportation expenses|3,000/-|2,000/-| |5|Extra nourishment|2,000/-|2,000/-| |6|Damage to clothing etc.|1,000/-|1,000/-| |7|Pain and suffering|20,000/-|25,000/-| |8|Compensation<br>for<br>continuing or permanent<br>disability|80,000/-|71,400/-| |9|Compensation for the<br>loss of earing power||| |10|Loss of amenities and<br>enjoyment of life|18,000/-|10,000/-| |11|Compensation<br>for<br>disfigurement|5,000/-|Nil| |12|Personal assistance|2,000/-|Nil| ||Total|1,86,000|1,52,900| 10. The accident occurred on 15.9.2012. At the time of the accident the appellant was aged 31 years. She claimed a monthly MACA.4700/2019 6 income of Rs 25,000/- as an LIC Agent. No reliable materials were placed 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 notionally as Rs.5,000/-, for the purpose of assessing compensation under various heads. 11. 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 is contrary to ground realities, the Tribunal may not accept the MACA.4700/2019 7 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. 12. 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. 13. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2012, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this MACA.4700/2019 8 Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.8,500/-, for the purpose of assessing compensation under various heads. 14. The document marked as Ext.A5 is the wound certificate and Ext.A6 is the discharge summary. As per medical records, in the accident, the appellant sustained fracture radial head left with elbow dislocation; pain elbow joint and proximal forearm; swelling and tenderness left forearm. The appellant had undergone inpatient treatment for 6 days. Ext.A9 and A10 series of medical bills are for a total sum of Rs.15,284/-. 15. The document marked as Ext.A8 is the disability certificate issued by an Assistant Professor in the Government Medical College, Thrissur in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed at 12%. The disabilities noted in Ext.A8 are Surgical scar over the lateral aspect of left elbow; deformity of left elbow over the lateral aspect; range of flexion of left elbow (120) reduced than right elbow (13) with FFD of 10; and difficulty in holding or lifting heavy objects with left hand. Radiologically, left radial head has been excised, early degenerative changes in left elbow. 16. The Tribunal marked Ext.A8 disability certificate, MACA.4700/2019 9 subject to proof. The appellant has not taken steps to prove Ext.A8 by examining the doctor concerned. Considering the nature of injuries sustained, without discarding the assessment of disability in Ext.A8 in toto, the Tribunal took the percentage of disability as 7%. The procedure adopted by the Tribunal cannot be said to be arbitrary or illegal, warranting interference in this appeal. 17. Towards loss of earning the Tribunal awarded a sum of Rs.15,000/-, at the rate of Rs.5,000/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.8,500/-, the compensation under the head loss of earning is re-fixed as Rs.34,000/- (8,500 x 4); resulting an additional compensation of **Rs.19,000** /- (34,000 – 15,000). 18. Towards medical expenses the Tribunal awarded Rs.15,300/- covered by Exts.A9 and A10 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. MACA.4700/2019 10 19. The Tribunal awarded a sum of Rs.2,000/- under the head transportation expenses. The accident is of the year 2012. The appellant had undergone inpatient treatment for 6 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards bystander expenses, the Tribunal awarded a sum of Rs.1,200/-. Towards extra nourishment the Tribunal awarded a further sum of Rs.2,000/-. The accident is of the year 2012. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from the medical records, the compensation under the head bystander expenses is re-fixed as Rs.1,500/- (250 x 6), resulting an additional compensation of **Rs.300** /- (1,500 – 1,200). The compensation awarded under the head extra nourishment cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards damage to clothing the Tribunal awarded Rs.1,000/-. Considering the fact that the accident is of the year 2012, the compensation under this head is re-fixed as Rs.1,250/-, MACA.4700/2019 11 resulting an additional compensation of **Rs.250** /- (1,250 – 1,000). 22. Towards pain and suffering the Tribunal awarded a sum of Rs.25,000/-. 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 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 MACA.4700/2019 12 **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 appellant was aged 31 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 not correct and the proper multiplier to be applied is **16** . 26. Towards compensation for permanent disability the Tribunal awarded a sum of Rs.71,400/- (5,000 x 12 x 17 x 7/100). Since the monthly income of the appellant is re-fixed notionally as Rs.8,500/-, applying the multiplier of 16 applicable to the age group of the appellant and the percentage of MACA.4700/2019 13 permanent disability as 7%, the compensation under the head permanent disability is re-fixed as Rs.1,14,240/- (8,500 x 12 x 16 x 7/100), resulting an additional compensation of **Rs.42,840/-** (1,14,240 - 71,400). 27. Towards loss of amenities and enjoyment of life, the Tribunal awarded a sum of Rs.10,000/-. Considering the nature of injuries sustained and the disabilities noted in Ext.A8, the compensation awarded by the Tribunal under this head is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.5,000** /- (15,000 – 10,000) 28. The Tribunal awarded no compensation for disfigurement. Considering the nature of disfigurement and deformities noted in Ext.A8 disability certificate, the appellant is granted a sum of **Rs.10,000** /- under this head. 29. In the result, the appellant will be entitled for an additional compensation of **Rs.67,390/-** (Rupees sixty seven thousand three hundred and ninety only) [19,000 + 300 + 250 + 42,840 +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 MACA.4700/2019 14 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 additional compensation to the appellant/claimant shall be made taking note of the law on the point and 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. The appellant shall provide her Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K.NARENDRAN, JUDGE** Mrcs