Kerala High Court
Vinod Kumar.P.B vs G.Dakshayani on 10 March, 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
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
MACA.No.879 OF 2008
AGAINST THE AWARD IN O.P.(MV) NO.3703/1999 DATED 04-05-2007 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
VINOD KUMAR.P.B.,
AGED 34 YEARS, SON OF BALAKRISHNAN,
PLAVUNGAL HOUSE,
ANDIKKADAVU P.O., KANDAKKADAVU,
COCHIN-682 008.
BY ADVS.
SRI.ANIL S.RAJ
SMT.ANILA PETER
SMT.K.N.RAJANI
RESPONDENTS/RESPONDENTS:
1 G.DAKSHAYANI,
W/O.GUNASEKARAN, 16/2,
ESM STREET, ARASAMARAPET, VELLORE.
2 K.ANNAMALAI,
S/O.KANNAN,
CHINNAKANGANELLORE VILLAGE,
ANAICUT (VIA), VELLORE TALUK.
3 THE ORIENTAL INSURANCE COMPANY LIMITED
REPRESENTED BY ITS REGIONAL MANAGER,
COCHIN-682 035.
4 THE UNITED INDIA INSURANCE COMPANY LIMITED,
HOSPITAL ROAD, COCHIN-682 011.
R3 BY ADV. SRI.P.JACOB MATHEW
R3 BY ADV. SRI.MATHEWS JACOB SR.
R4 BY ADV. SRI.P.MURALEEDHARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.879 of 2008 -2-
JUDGMENT
The appellant is the claimant in O.P.(MV)No.3703 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam, 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 19.09.1999, while talking with one Sreeju, who was sitting as pillion rider on a motorcycle. At the place of accident, the motorcycle was hit by a lorry bearing registration No.TN-23/B- 2896, owned by the 1st respondent, driven by the 2nd respondent and insured with the 3rd respondent. The 4th respondent is the insurer of the motorcycle. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the lorry by the 2 nd respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads.
2. Before the Tribunal, the 1st respondent owner and the 2nd respondent driver of the lorry remained absent and they were set ex parte.
3. The 3rd respondent insurer filed written statement MACA No.879 of 2008 -3- admitting insurance coverage of the lorry involved in the accident; however, denying negligence alleged against the 2 nd respondent driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive.
4. Before the Tribunal, the claim petition was tried along with the connected matter. Exts.A1 to A24 were marked on the side of the claimants. On the side of the respondents, the insurance policy of the offending vehicle was marked as Ext.B1. The document marked as Ext.A24 is the disability certificate issued by the Medical Board assessing the permanent disability of the claimant, on account of the injuries sustained in the accident.
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 lorry by the 2nd respondent driver. Since the 2nd respondent driver was not holding a valid driving licence, the 3rd respondent insurer was granted right to proceed against the 1 st respondent owner for recovering the amount of compensation paid to the claimant. MACA No.879 of 2008 -4- Under various heads, the Tribunal awarded a total compensation of Rs.2,24,400/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with proportionate cost and the 3rd respondent insurer was directed to satisfy the award and get the said amount recovered by proceedings against the 1 st respondent owner.
6. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the appellant/claimant is before this Court in this appeal.
7. Heard the learned counsel for the appellant/ claimant, the learned Senior Counsel for the 3 rd respondent insurer of the lorry and also the learned counsel for the 4 th respondent insurer of the motorcycle. Despite service of notice, none appears for the 1st respondent owner and the 2nd respondent driver.
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.
MACA No.879 of 2008 -5-
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 exactitude. It can never be perfect. The aim is to achieve an MACA No.879 of 2008 -6- 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;
Sl. Head of claim Amount awarded
No. (in rupees)
1 Transportation, hospitalisation, attendant 4,000/-
expenses, extra nourishment & damage to
clothing
2 Medical expenses 40,400/-
3 Loss of earnings 10,000/-
4 Pain and suffering 40,000/-
5 For discomforts & inconveniences 25,000/-
6 For permanent disability 85,000/-
7 Short expectation of life 20,000/-
TOTAL Rs.2,24,400/-
12. The accident occurred on 19.09.1999. At the time of accident, the appellant was aged 25 years. In the claim petition, it was claimed that, at the time of accident, the appellant, an ITI certificate holder, was working in a private sea food company, earning a monthly income of Rs.2,300/-. The document marked as Ext.A22 is the employment certificate, as per which he was getting a monthly salary of MACA No.879 of 2008 -7- Rs.2,300/-. The appellant has not chosen to prove Ext.A22 by examining the employer concerned. The appellant has also not chosen to mount the box. The Tribunal took the monthly income of the appellant as Rs.2,500/-.
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 realities, the Tribunal may not MACA No.879 of 2008 -8- 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 the time of accident, i.e., during the year 1999, and taking MACA No.879 of 2008 -9- note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the notional monthly income of Rs.2,500/- taken by the Tribunal is not on the lower side, which requires no enhancement in this appeal.
16. The document marked as Ext.A17 is the wound certificate, as per which, the appellant sustained abrasions on right elbow, right hand, diffuse cerebral oedema, diffuse axonal injury and left frontal contusion. He had undergone inpatient treatment for a period of 38 days. Ext.A20 series of medical bills are for a sum of Rs.40,399/-.
17. The document marked as Ext.A24 is the disability certificate issued by the Medical Board at the General Hospital, Ernakulam in which the permanent disability of the appellant, on account of the injuries sustained in the accident, is assessed as 22%. The disabilities noted by the Medical Board are impairment of short term memory causing difficulty in carrying out his daily routine; emotional and behavioural impairment of mild degree causing difficulty interacting with other people; and vertigo and imbalance on standing and ambulant position. The Tribunal did not accept the percentage MACA No.879 of 2008 -10- of permanent disability assessed in Ext.A24, on the ground that the disability is classified as moderate and reasonable. The assessment of disability in Ext.A24 disability certificate is by the Medical Board at the General Hospital, Ernakulam. Considering the nature of injuries sustained and the disabilities noted in Ext.A24, the permanent disability of 22% assessed by the Medical Board is taken for granting compensation under various heads.
18. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/-, at the rate of Rs.2,500/- 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 re-fixed as 5 months. Since the monthly income of the appellant is re-fixed notionally as Rs.2,500/-, the compensation under the head loss of earning is re-fixed as Rs.12,500/- (2,500 x 5), resulting an additional compensation of Rs.2,500/- (12,500 - 10,000).
19. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 38 days. MACA No.879 of 2008 -11- The accident is of the year 1999. Towards transportation, hospitalisation, attendant expenses, extra nourishment and damage to clothing, the Tribunal awarded a consolidated sum of Rs.4,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted a sum of Rs.2,000/- under the head transportation expenses; Rs.5,700/- (150 x
38) under the head attendant expenses; Rs.3,800/- (100 x 38) under the head bystander expenses; and Rs.750/- under the head damage to clothing, resulting an additional compensation of Rs.8,250/- [(2,000 + 5,700 + 3,800 + 750) - 4,000].
20. Towards medical expenses, the Tribunal awarded a sum of Rs.40,400/-, covered by Ext.A23 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.
21. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.40,000/-. Considering the nature of injuries sustained and the treatment the appellant MACA No.879 of 2008 -12- 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.
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. 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, MACA No.879 of 2008 -13- 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 said judgment.
24. In the instant case, as on the date of accident, the appellant was aged 25 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 proper multiplier to be applied is
18.
25. Towards compensation for permanent disability, the Tribunal awarded a consolidated sum of Rs.85,000/-. Since the notional monthly income of the appellant is taken as Rs.2,500/-, applying the multiplier of 18 applicable to the age group of the appellant and the percentage of permanent disability as 22%, the compensation under the head MACA No.879 of 2008 -14- permanent disability is re-fixed as Rs.1,18,800/- (2,500 x 12 x 18 x 22/100), resulting an additional compensation of Rs.33,800/- (1,18,800 - 85,000).
26. Towards discomforts and inconveniences (loss of amenities), the Tribunal awarded a sum of Rs.25,000/-. Considering the nature of injuries sustained and 22% permanent disability on account of those injuries, as assessed in Ext.A24 disability certificate, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal.
27. The Tribunal awarded a sum of Rs.20,000/- towards short expectation of life. The compensation under the head loss of expectation of life is granted in cases in which, the normal longevity of the person concerned is shortened, on account of the injuries sustained in an accident, as held by the Apex Court in R.D. Hattangadi v. Pest Control (India) Private Limited [(1995) 1 SCC 551]. Paragraph 9 of the said decision reads thus;
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary MACA No.879 of 2008 -15- damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life." (underline supplied)
28. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343] the Apex Court held that, the provisions of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as MACA No.879 of 2008 -16- money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages) MACA No.879 of 2008 -17-
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
29. In the instant case, as evident from Ext.A17 wound certificate, the appellant sustained traumatic brain injuries, i.e., diffuse cerebral oedema, diffuse axonal injury and left frontal contusion. As evident from Ext.A24 disability certificate, on account of those injuries, the appellant is suffering from impairment of short term memory causing difficulty in carrying out his daily routine; emotional and behavioural impairment of mild degree causing difficulty interacting with other people; MACA No.879 of 2008 -18- and vertigo and imbalance on standing and ambulant position. As already noticed, the compensation under the head loss of expectation of life is granted only in cases in which, on account of the injury, the normal longevity of the person concerned is shortened. Considering the nature of injuries sustained and the disabilities noted in Ext.A24, the compensation of Rs.20,000/- awarded by the Tribunal under the above head cannot be said to be on the lower side, which requires no enhancement in this appeal.
30. In the result, the appellant/claimant will be entitled for payment of an additional compensation of Rs.44,550/- (Rupees forty four thousand five hundred and fifty only) [2,500 + 8,250 + 33,800] 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 3rd respondent insurer will be MACA No.879 of 2008 -19- entitled to recover the said amount by proceeding against the 1st respondent owner. 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 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 bpr