Kerala High Court
Venu vs K.K.Jose on 17 January, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
MACA.No.1538 OF 2009
AGAINST THE AWARD IN OP(MV)NO.362/2004 DATED 24-11-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:
VENU, S/O.MANIKKAN
CHELOOR DESOM, MANAVALASSERY VILLAGE,IRINJALAKUDA
P.O., MUKUNDAPURAM TALUK,, THRISSUR DISTRICT.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENTS/RESPONDENTS:
1 K.K.JOSE, S/O.KOCHUVAREED
KOONAN HOUSE, PULLUR P.O., IRINJALAKUDA.
2 BIJU GEORGE S/O.GEORGE
KADANGOTTU HOUSE, EAST COMBARA, IRINJALAKUDA.
3 THE NATIONAL INSURANCE CO.LTD.
MALIEKKAL BUILDINGS, MAIN ROAD,, IRINJALAKUDA.
R3 BY ADV. SRI.P.JACOB MATHEW
R3 BY ADV. SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 17.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.1538 of 2009 2
JUDGMENT
The appellant is the claimant in O.P(MV)No.362 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, 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 30.07.2003, while he was riding a motorcycle bearing registration No.KL-8/G-8473. At the place of accident, the motorcycle was hit by a tanker lorry bearing registration No.KLU-2258, owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by the 2nd respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.4,00,000/- under various heads.
2. Before the Tribunal, the 1st respondent owner and the 2nd respondent driver remained absent and they were set ex parte.
3. The 3rd respondent insurer filed written statement MACA No.1538 of 2009 3 admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against its driver. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant/claimant.
4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the tanker lorry 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 tanker lorry by the 2nd respondent driver. 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.2,82,550/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit, with proportionate cost, and the insurer was directed to satisfy the award. MACA No.1538 of 2009 4
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 3rd respondent insurer. Since insurance coverage of the offending vehicle is admitted by the 3 rd respondent insurer, service of notice on respondents 1 and 2 is dispensed with.
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 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 MACA No.1538 of 2009 5 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 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 MACA No.1538 of 2009 6 by the Tribunal under various heads reads thus;
Head of claim Amount
awarded in
rupees
Medical expenses 1,40,350/- (Ext.A10 series of
medical bills)
Hospitalisation 4,600/-
expenses, including
bystander expenses
Transportation 3,000/-
expenses
Loss of income 12,000/- (2,000 x 6)
Pain and suffering 30,000/-
Discomfort and loss 15,000/-
of amenities
Disability 77,600/- (2,000 x 12 x 17 x
compensation 19/100) - Rs.77,520/-
rounded off to
Rs.77,600/-
Total 2,82,550/-
12. The accident occurred on 30.07.2003. At the time of accident, the appellant was aged 33 years. The appellant claimed a monthly income of Rs.6,000/- as an unskilled worker in Kerala Solvent Extractions Limited. In order to prove monthly income and also loss of earning, the appellant produced Ext.A8 leave and salary certificate, as per which, the monthly salary of the appellant, including dearness allowance and variable dearness allowance, comes to Rs.4,407/-. Ext.A8 certificate was not proved by examining a competent person. The appellant has also not MACA No.1538 of 2009 7 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 or if the claim made is contrary to ground MACA No.1538 of 2009 8 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.
15. Considering the economic conditions prevailing at MACA No.1538 of 2009 9 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, and also Ext.A8 leave and salary certificate, this Court deem it appropriate to re-fix the monthly income of the appellant as Rs.4,407/-, for the purpose of assessing compensation under various heads.
16. The document marked as Ext.A3 is the wound certificate and Ext.A4 series are the discharge summaries. As per the medical records, in the accident, the appellant sustained lacerated wound over the right leg distally, on the right thigh laterally 5x3x2cm, over the chin 4x1x0.5cm, and abrasions over the abdominal wall and right hand. Investigation revealed fracture of both bones of the right leg. Initially, he had undergone inpatient treatment for a period of 20 days for Type I open fracture of right femur, Type III open fracture of both bones of right leg and fracture of tibial condyle. Wound debridement and interlocking nailing were done and internal fixator applied during treatment. On 09.10.2003, he was again admitted in the MACA No.1538 of 2009 10 hospital for one day. On 04.11.2003 he was admitted for 3 days for removal of external fixator. On 19.11.2003 he was admitted for 6 days. On 10.05.2004 he was admitted for one day, for removal of distal screw and for relocking. On 30.01.2008 he was admitted for 6 days for nail removal. On 20.02.2008 he was admitted for 6 days for anthroscopic ACL reconstruction. On 13.03.2008 he was admitted for 3 days for distal screw realignment. Therefore, the appellant had undergone inpatient treatment for a total period of 46 days. Ext.A10 medical bills are for a sum of Rs.1,40,350/-.
17. Ext.A6 is the disability certificate issued by an individual doctor, in which 45% permanent limb disability and 38% permanent whole body disability are assessed, on account of the injuries sustained in the accident. The Tribunal did not accept 38% whole body disability assessed in Ext.A6, since no documents were placed on record to show any reduction of monthly income on account of that disability. The claimant was personally present before the Tribunal. Though, the doctor who issued Ext.A6 certificate was not examined, considering his physical difficulties, the MACA No.1538 of 2009 11 Tribunal took 19% whole body disability, for the purpose of awarding compensation under various heads.
18. During the pendency of this appeal, by the order dated 22.11.2019, the appellant was referred to the Medical Board at the Medical College Hospital, Thrissur in order to assess his permanent disability, on account of the injuries sustained in the accident. The disability certificate dated 11.12.2019 issued by the Disability Assessment Board at Government Medical College Hospital, Thrissur is placed on record along with a covering letter dated 13.12.2019 of the Chairman of the Medical Board, in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 23%, using the combination formula. The learned Senior Counsel for the 3 rd respondent insurer has not raised any objection on the assessment of permanent disability by the Medical Board in the certificate dated 11.12.2019.
19. In Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], the Apex Court, after referring to its earlier decisions in Kerala State Road MACA No.1538 of 2009 12 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 to 60 years, multiplier of 7 for 61 to 65 years and multiplier of 5 for 66 to 70 years.
20. 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 MACA No.1538 of 2009 13 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.
21. In the instant case, at the time of accident, the appellant was aged 33 years, who was working as an unskilled worker in Kerala Solvent Extractions Limited earning a monthly income of Rs.4,407/-. The permanent disability of 23% on account of the injuries sustained in the accident, will have no bearing on his earning capacity till his retirement from service on attaining the age of superannuation. However the said disability will certainly have an adverse impact on his earning power, after retirement from service. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, taking Rs.2,203/- (i.e. 50% of his monthly income of Rs.4,407/-) as his notional monthly income after his retirement from service on superannuation; and applying the multiplier of 9 applicable to the age group of 56 - 60 years.
22. Towards compensation for permanent disability, MACA No.1538 of 2009 14 the Tribunal awarded a sum of Rs.77,600/- (2,000 x 12 x 17 x 19/100). Since the monthly income of the appellant after his retirement is fixed notionally as Rs.2,203/-, applying the multiplier of 9 applicable to the age group of 56 - 60 years and the percentage of permanent disability as 23%, the compensation under the head permanent disability is re- fixed as Rs.54,722/- (2,203 x 12 x 9 x 23/100), resulting an excess payment of Rs.22,878/- (77,600 - 54,722), which has to be deducted from the additional compensation granted in this appeal.
23. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.2,000/- for a period of 6 months. The learned counsel for the appellant would point out that, as per Ext.A8 leave and salary certificate, the loss of earning of the appellant, for the period of his absence from service, on account of the injuries sustained in the accident, comes to Rs.1,01,000/-. The learned Senior Counsel for the 3rd respondent insurer would submit that the insurer has no objection in re-fixing the compensation under the head loss of earning as Rs.1,01,000/-. In such MACA No.1538 of 2009 15 circumstances, the compensation under the head loss of earning as Rs.1,01,000/-, resulting an additional compensation of Rs.89,000/- (1,01,000 - 12,000).
24. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 46 days. The accident is of the year 2003. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone during 8 different spells, as borne out from medical records, the compensation under this head is re-fixed as Rs.5,000/-, resulting an additional compensation of Rs.2,000/- (5,000
- 3,000).
25. Towards hospitalisation expenses, including bystander expenses, the Tribunal awarded a sum of Rs.4,600/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 46 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted Rs.6,900/- (150 x MACA No.1538 of 2009 16
46) under the head bystander expenses and a further sum of Rs.4,600/- (100 x 46) under the head extra nourishment, resulting an additional compensation of Rs.6,900/- [(6,900 + 4,600) - 4,600]
26. Towards medical expenses, the Tribunal awarded a sum of Rs.1,40,350/-, covered by Ext.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.
27. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.30,000/-. 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.
28. Towards loss of amenities the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries MACA No.1538 of 2009 17 sustained and 23% permanent disability on account of those injuries, as assessed by the Medical Board in the disability certificate dated 13.12.2019, the compensation awarded by the Tribunal under this head is re-fixed as Rs.25,000/-, resulting an additional compensation of Rs.10,000/- (25,000 - 15,000).
29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of Rs.85,022/- (Rupees eighty five thousand and twenty two only) [(89,000 + 2,000 + 6,900 + 10,000) - 22,878] in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. The 3rd 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 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 MACA No.1538 of 2009 18 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 his 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 AV/23/1