Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, MACA.No.2886 OF 2008 AGAINST THE AWARD IN OPMV 2040/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM
APPELLANT/S: SATHEESAN, AGED 47 YEARS, CHATHALUMPATTUKONAM KIZHAKKUMKARA, PUTHEVEEDU, THANNIVILA, VEDIVECHANCOIL P.O.,, PALLICHAL VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT/S: 1 SURENDRAN AND ANOTHER CHATHALAPATTU VADAKKUMKARA VEEDU,, PALLICHAL VILLAGE, NEYYATTINKARA. 2 THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO.LTD., KOTTARATHIL BUILDINGS,, PALAYAM, THIRUVANANTHAPURAM. OTHER PRESENT: SRI A.A.ZIYAD REHMAN -STANDING COUNSEL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
The appellant is the claimant in O.P.(MV)No.2040 of
2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, 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 26.10.2003, while he was travelling in an autorickshaw bearing registration No.KL- 01/M-7483 owned and driven by the 1 st respondent and insured with the 2nd respondent. At the place of accident, the autorickshaw hit a pedestrian and capsized. In the accident, the appellant/claimant and another sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of autorickshaw by the 1st respondent driver, claim
petition was filed before the Tribunal claiming a total compensation of Rs.1,50,000/-, under various heads.
2. Before the Tribunal, the 1st respondent owner-cum-
driver filed written statement admitting the accident; however, denying the negligence alleged against him. It was pointed out that at the time of accident, the vehicle involved in the -3- accident was having a valid insurance coverage with the 2 nd respondent insurer. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive.
3. The 2nd respondent insurer filed written statement
admitting the insurance coverage of the offending vehicle; however, denying the negligence alleged against the 1st respondent owner-cum-driver. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive.
4. The claim petition was tried along with O.P.(MV)
No.1853 of 2003, arising out of the very same accident. Before the Tribunal, Exts.A1 to A12 were marked on the side of the claimants. The disability certificates of the respective claimants were marked as Exts.X1 and X2. The document marked as Ext.X1 is the disability certificate issued by the District Medical Board assessing the permanent disability of the appellant/claimant, on account of the injuries sustained in the motor accident as 15%. Both sides have not chosen to
-4- 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 1st respondent driver. Since the 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.52,950/-, and the 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., 16.12.2003 till realisation.
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 2 nd respondent/insurer.
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- 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
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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;
The compensation claimed Amount Remarks under various heads Awarded Loss of earning 4000 For 2 months Medical and incidental 1000 No bills produced expenses Transportation to the hospital 500 Extra nourishment 1000 IP treatment for 13 Engaging a bystander 1000 days Damage to clothing 250 Pain and suffering 15000 Permanent disability resulting 2000 x 12 x 15 x 7% in loss of future earning power 25200 Loss of amenities 5000 Total 52950
12. The accident occurred on 26.10.2003. At the time of accident, the appellant was aged 42 years. The appellant -7-
claimed a monthly income of Rs.4,000/- as coolie (manual labourer). No materials were produced before the Tribunal to prove the 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
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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.
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
-9- vegetable vendor is reasonably capable of earning 6,500/- per month.
15. In the absence of any reliable evidence,
considering the economic conditions prevailing at the time of accident, i.e., during the year 2003, 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.4,000/- as claimed in the claim petition, for the purpose of assessing compensation under various heads.
16. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the treatment card. Ext.A5 is the
referal O.P.Card and Ext.A6 is the treatment certificate. As per medical records, the appellant sustained fracture of right clavicle and fracture of medial condyle left and he was treated at the Medical College Hospital, Thiruvananthapuram. He had undergone inpatient treatment for a period of 13 days at Government Hospital, Nemom from 04.11.2003 to 17.11.2003.
17. In Ext.X1 disability certificate, the District Medical -10-
Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 15%. The Tribunal did not accept the percentage of permanent disability assessed in Ext.X1; however considering the multiple fractures suffered by the appellant fixed the percentage of disability as 7%.
18. The disability certificate marked as Ext.X1 is one
issued by the District Medical Board. The Tribunal observed that the characteristic features of the disabilities noted in Ext.X1 do not co-relate with medical records. In the absence of any vitiating circumstances pointed out in the assessment of disability by the Medical Board, the Tribunal cannot discard the percentage of permanent disability assessed in that certificate. The reasoning of the Tribunal in the impugned award, for re-fixing the percentage of permanent disability as 7% cannot be sustained and it is held that the appellant will be entitled for assessment of compensation under various heads fixing the percentage of permanent disability as 15%, as assessed in Ext.X1.
19. Towards loss of earning, the Tribunal awarded a -11-
sum of Rs.4,000/-, at the rate of Rs.2,000/- per month for a period of 2 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 2 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.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.16,000/- (4,000 x 4), resulting an additional compensation of Rs.12,000/- (16,000 - 4,000).
20. On account of the injuries sustained in the
accident, the appellant had undergone inpatient treatment for 13 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. Considering the nature of injuries sustained and the different spells of treatment the appellant had undergone, as borne out from medical records, the compensation under this head is re-fixed as Rs.1,500/-, resulting an additional compensation of Rs.1,000/- (1,000 - 500).
21. Towards bystander expenses the Tribunal awarded -12- a sum of Rs. 1,000/-. Towards extra nourishment, the Tribunal awarded a further sum of Rs.1,000/-. The accident is of the
year 2003 and the appellant had undergone inpatient treatment for 13 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 re-fixed as Rs.1,950/- (150 x 13), resulting an additional compensation of Rs.950/- (1,950 - 1,000) under this head. The compensation under the head extra nourishment is re-fixed as Rs.1,300/- (100 x 13), resulting an additional compensation of Rs.300/- (1,000 - 300).
22. Towards damage to clothing the Tribunal awarded a sum of Rs.250/-. Considering the fact that the accident is of the year 2003, the compensation under this head is re-fixed as Rs.750/-, resulting an additional compensation of Rs.500/- (750 - 250).
23. Towards medical and incidental expenses, the Tribunal awarded a sum of Rs.1,000/-. In the absence of any medical bills, the compensation awarded by the Tribunal under -13- this head represents just and reasonable compensation, which requires no enhancement in this appeal.
24. 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 cannot be said to be on the lower side. Therefore, the appellant is not entitled for any enhancement under this head.
25. 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
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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.
26. 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.
27. In the instant case, as on the date of accident, the
appellant was aged 42 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 15 applied by the Tribunal is not correct and and the proper multiplier to be -15- applied is 14.
28. Towards compensation for permanent disability, the Tribunal awarded a sum of Rs.25,200/- (2,000 x 12 x 15 x
notionally as Rs.4,000/-, applying the multiplier of 14 applicable to the age group of the appellant and the percentage of permanent disability as 15%, as assessed in Ext.X1 the compensation under the head permanent disability is re-fixed as Rs.1,00,800/- (4,000 x 12 x 14 x 15/100), resulting an additional compensation of Rs.75,600/- (1,00,800 - 25,200).
29. Towards loss of amenities the Tribunal awarded a
sum of Rs.5,000/-. In Ext.X1 disability certificate the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 15%. Considering the nature of injuries sustained and the permanent disability that has been assessed in Ext.X1 disability certificate, the compensation awarded by the Tribunal under this head re-fixed as Rs. 15,000/-, resulting an -16- additional compensation of Rs.10,000/- (15,000 - 5,000).
30. In the result, the appellant will be entitled for
payment of an additional compensation of Rs.1,00,350/- (Rupees one lakh three hundred and fifty only) [12,000 + 1,000 + 950 + 300 + 500 + 75,600 + 10,000] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 2nd 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. 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. ANIL K.NARENDRAN JUDGE das